This is no way to deal with employment law reform!

10 October 2011

It may have taken the Government some time to get cracking with its programme of employment law reform, but we thought it was getting things organised when it released “Resolving Workplace Disputes” in January 2011 containing, as it did, a large number of proposals seeking to head off employment disputes reaching the Tribunal in the first place, and then if they did, improving the system such as to ensure they were processed more efficiently than now. We have been waiting many months for the Government to reply to all the responses that were sent into the Paper, and then all of a sudden, doubtless to coincide with the Conference of the Conservative Party in Manchester last week, a number of announcements were made, and in some cases snatched back almost as quickly as they had been released!

If it wasn’t so serious, it would almost be laughable. On Wednesday 28 September the Government published, we now know inadvertently, a series of proposals to “deregulate business”. Amongst them were 3 of specific relevance to the work of employment lawyers:

  1. an increase in the qualifying period for unfair dismissal claims from 1 year to 2;
  2. the introduction of fees for bringing Employment Tribunal claims;
  3. a consultation on removing Equality Act provisions imposing liability on employers for third party harassment which they do not take reasonable steps to prevent.
Then somewhat ignominiously later that day the Government had put out another statement….

“We can confirm that there was a drafting error in the second statement of New Regulation. No final decision has been taken to increase the unfair dismissal qualifying period.”

Yet, within a few days, at the beginning of last week, 3 October, the Government was announcing that the qualifying period for unfair dismissal purposes would increase to 2 years.

Also on 3 October, the Government announced that employees are going to have to pay issue fees if they want to bring claims before the Employment Tribunal. It is anticipated this change will come in to force in April 2013. Yet we still have not received the Government’s consultation paper on this contentious issue. We have now been told it will come out in November. It was supposed to have been with us this Spring.

Given one of the issues employers frequently raise is the difficulty they have in coping with all the changes introduced by the Government, it does seem ironic to have these sort of shenanigans being played out on their behalf!

And, more to the point, the Government is currently focusing attention specifically on just one or two of the important proposals that had been canvassed earlier this year. What of all the other important issues, such as:

  • increasing the Tribunals’ powers to strike out weak cases;
  • increasing Tribunals’ powers to make Deposit Orders;
  • increasing the “cap” on cost awards, requiring early Schedules of Loss to be filed by employees with their ET1,
  • having Employment Judges being able to sit alone (i.e. without lay members) to hear unfair dismissal claims;
  • appointing Legal Officers, rather than Employment Tribunal Judges, to deal with routine applications; and
  • the enormously contentious area of imposing financial penalties on transgressing employers with their “fines” being paid not to employees, but to the Exchequer.
These are all very important reforms that have been out for consultation for the best part of a year, yet despite the current focus on employment law, nothing has been heard from the Government as to what it actually wants to do with them.

No wonder George Osborne and Vince Cable seem to have got “twitchy” about this, but their impatience needs to spill out in the form of a considered holistic approach to the reform agenda, and not a focus upon one or two of the more “high profile issues” to attract attention at party conferences.

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