Claims game
Increasing the qualifying period for dismissal and introducing fees for tribunal litigation have caused concern in the employment law community, but are the proposed government reforms all bad? James Davies says the proposals contain some useful ideas, as Jane Wheeler welcomes process improvements, but Edward Cooper warns about possible abuses
The coalition's proposals for employment reform announced by Vince Cable on 23 November amounted to something of a curate's egg. The business secretary's speech heralded the publication, later that day, of BIS's response to its Resolving Workplace Disputes consultation.
Perhaps the main proposals concern reforming unfair dismissal law. There are two pressures here to which the government is responding. First, a concern that growth is being stifled by the reluctance of some employers to hire '“ blamed on difficulties in dismissing if the recruitment does not work out. Second, the cost of the tribunal system. Restricting unfair dismissal claims would, of course, help.
A key proposal is to increase the qualifying period from one to two years. Unfair dismissal law has its limitations but it is these limitations that should be addressed, not the arbitrary removal of ten per cent of the workforce from protection. Conversely, the increase in the qualifying period is likely to have the effect of pushing people into bringing discrimination or other complex and costly claims where they believe they have been wronged by their employer. It is also likely to increase insecurity among the workforce who, for two years, will be in fear of being dismissed on a whim. We need a secure, skilled workforce in which employers invest and train, while at the same time a simple and predictable system for addressing the breakdown of the relationship.
A second key proposal '“ the idea of compensated no-fault dismissals for micro employers '“ is, on the other hand, an interesting one. This was floated, albeit for all employers, not just the smallest, in the leaked Beecroft report. Beecroft's proposal envisages a compensatory payment equal to statutory redundancy. A system that avoids the uncertainty of compensation and unpredictability of outcome, yet provides a sufficient payment to provide security for employees and a deterrent against arbitrary dismissal, is worth further investigation. The scheme should also find a way to encourage employers to remedy performance problems or investigate allegations of misconduct, perhaps through different levels of compensation payment.
The most significant development is consultation on the introduction of fees to file claims or to proceed to a hearing. The concept of fees is not necessarily a bad thing. Government announcements have highlighted the need to deter weak claims. However, the reality is complex. Some, but not many, claims are brought cynically by claimants relying on cost and potential reputational damage to spur the employer to settle. Equally, in some cases, employers can coerce a claimant with a meritorious claim to withdraw in light of the cost, complexity and reputational damage of pursuing a claim. In other cases, claimants with unmeritorious claims may genuinely believe that they have a good case, which is unsurprising bearing in mind the complexity of employment law. The level of fees must not be too high to deter valid claims.
Ed Davey, who accompanied Cable at the announcement, accepted that there would have to be provision for those with limited resources to be exempted from fees. It must be questionable, particularly bearing in mind that many people who bring employment tribunal claims are, by definition, out of work, whether or not a system of administering fees might be more costly than the revenue gained.
Sensible suggestions
Other suggestions for simplifying the system announced by Cable included the possibility of paper-only process for simple cases to be heard by legal officers and extending the scope of cases that can be heard by judges alone to include unfair dismissal claims. These are sensible suggestions that should be welcomed.
Cable also announced that there would be compulsory conciliation to ACAS before the filing of an employment tribunal claim. Apparently, pilot studies have shown that this will reduce claims by 50 per cent. Davey confirmed that the role of ACAS would be to provide information that would inform potential claimants. He said that some claimants might have unrealistic ideas of the level of compensation that they might receive or the rights that they might have. It will be interesting to see what additional resources might be made available to ACAS to enable it to fulfil this role effectively.
Some of the other proposals make eminent sense. For example, the proposal to reform whistleblowing law, so that an employee cannot rely on a complaint about a breach of his or her employer's obligations as a protected disclosure is welcome.
Perhaps more contentiously but, in my view, equally welcome, is the proposal to call for evidence on the requirement to consult collectively for 90 days where a collective redundancy of 100 or more is contemplated. Cable announced that the government would welcome views on reducing this to 60, 45 or even 30 days. As many employers will have experienced, effective consultation can take place in far less than 90 days and, while most employers do not resent the obligation to consult collectively, they can resent the need to delay unnecessarily key business steps by a period that extends too long.
Less welcome is the proposal to introduce 'protected conversations' between employee and employer, which is bound to generate satellite litigation as there will have to be rules on what does and does not amount to a 'protected conversation' and discriminatory conversations could not be covered.