As we return to our desks for the start of 2012, we thought it would be helpful to provide a quick reminder of the important changes we will need to accommodate this year, following the blizzard of government announcements at the end of 2011.
The period of qualification for unfair dismissal protection will increase from one year to two. This should be introduced this April.
Employees will need to pay fees in order to bring claims before the employment tribunal. Proposals for their introduction were published just before Christmas and are detailed. Broadly there will be two principle alternatives. Either there will be an initial fee to launch the claim in the first place (at different “levels” depending upon the type of claim), and then a second to take the claim to a hearing. Alternatively there could be a higher fee to be paid at the outset if the claimant is seeking more than £30,000 by way of compensation. The new system will come into force either in 2013 or in 2014 depending upon which option is ultimately chosen.
All potential claims to the employment tribunal will have to be referred initially to Acas to see if they can resolve matters through mediation.
There is to be consultation on the proposal to introduce “protected conversations” so as to allow employers to feel secure in engaging employees in discussion around issues such as poor performance and retirement, without the fear that evidence of such conversations may be used against them in subsequent employment tribunal proceedings (unless what they have to say is discriminatory!).
Various changes are to be made to tribunal procedure including deposit orders which may be made up to £1,000 (not £500 as at present) and cost orders which will be subject to a maximum of £20,000 (not £10,000). There will still be the facility to apply for an order that costs be assessed by the County Court, and there are no financial limits to such an award. Witness statements are to be taken as read unless a judge or tribunal directs otherwise.
There is to be a standard text for Compromise Agreements so that they will all look broadly the same.
Sir Nicholas Underhill, the outgoing President of the EAT, is to head a review of all the employment tribunal rules of procedure. Expect many changes in due course.
Employment judges will sit alone (i.e. with no lay wing members) to hear unfair dismissal cases.
Where employers are found to have been in breach of employment rights, they will have to pay a financial penalty, not to the employee, but to the Exchequer.
The effectiveness of TUPE is currently being examined to see if these regulations can be improved. This will include a review as to whether they “gold plate”, in other words go further than our European obligations prescribe.
There is also currently an examination of the rules which impose obligations to consult “collectively” whenever a large number of redundancies are being made, so as to see if the current 90 day consultation period (where 100 or more redundancies are proposed in a 90 day period) might be reduced to 60, 45 or even 30 days.
Employers with 10 or fewer employees may be allowed to engage in “no fault” dismissals on payment of a prescribed amount (possibly equivalent to a statutory redundancy payment).
The whistle blowing “loophole” whereby employees could claim to have suffered detriment because they blew the whistle on breaches of their own contract of employment, will be closed.
CRB checks are to become "portable". From 2013, once the check has been completed, employers will be able to go online to see if there has been any change. This will thereby obviate the need to conduct a fresh check every time such employees are recruited.
New compensation limits
In the meantime, we have also received the regular increase in Tribunal awards this year. The new limits, adjusted as always in line with inflation, will come into force on 1st February 2012. The key changes are:-
a “week's pay” for the purposes of calculating redundancy payments and the “basic” unfair dismissal award will be capped at £430 – up from £400; and
the maximum compensatory award in unfair dismissal claims goes up to £72,300 from £68,400