Business secretary announces employment law overhaul
Mr Justice Underhill is to conduct a review of employment tribunal procedure and will recommend a revised procedural code by the end of April 2012.
The review is part of a package of sweeping reforms to employment law proposed by the government, and announced by business secretary Vince Cable last week.
Karen Plumbley-Jones, a practice development lawyer at Bond Pearce, says the draft terms of reference for the review indicate the new rules will include robust case management powers, which will be used to deal with cases with little (or no) reasonable prospect of success; the exercise of interlocutory powers by legal officers as well as judges and tribunals; a greater role for mediation; more efficient listing of cases for hearing; and greater consistency across Great Britain and further use of standard orders and directions.
“Most of these changes are likely to be welcomed by practitioners, although the use of unqualified legal officers may give some cause for concern,” she says.
Cable launched a “call for evidence” on whether the 90-day statutory consultation period on collective redundancies should be reduced to 60, 45 or even 30 days, and on whether the current TUPE rules for restructuring businesses are overly bureaucratic. He said the government is also considering introducing compensated no fault dismissal for “micro firms” with fewer than 10 employees, as well as simplifying dismissal procedures overall for small businesses, which is likely to require changes to the Acas code. One scheme mooted is a fast-track three-month resolution process for simple claims.
Other proposals include: having employment judges sit alone to hear unfair dismissal cases; requiring all claims to be lodged with Acas, for mediation where possible, before they can be lodged with the tribunal; and introducing “protected conversations”, to allow employers to raise issues such as poor performance with employees without fear the conversation will be used in a subsequent tribunal case.
The government has already committed itself to doubling the unfair dismissal qualification period to two years, and is to consult on introducing fees for employment tribunal claimants. Cable said: he would be seeking views on two options: “The first proposes a system that involves payment of a fee to lodge a claim, and a second fee to take that claim to a hearing. The second option proposes introducing a £30,000 threshold, so those seeking an award of more than £30,000 will pay more.”
Alison Humphry, an employment law specialist at Russell Jones & Walker says: "The proposal to have employment judges sitting alone on unfair dismissal cases is not a popular one within the employment law community. Judges are, in the main, legal practitioners with fairly limited experience in employment relations at the workplace level. Practitioners from all sides recognise the importance of having wing members with considerable experience of workplace matters as the 'industrial jury'. This experience is all the more important in an unfair dismissal case, where the key question is usually whether an employer's decision to dismiss was, overall, reasonable."
On introducing fees for employment tribunal claims, Humphry says: "Fees to initiate employment tribunal claims will undoubtedly help the government to reach its target of reducing the overall number of tribunal claims.
"But this measure will not just target weak claims; it will also target the justified claims of those who cannot afford to pursue them. It also means that important issues of principle - such as equal pay or other discrimination claims - will tend not to be litigated because the overall result may not justify the initial fee. Tribunal fees will certainly work to the disadvantage of individuals."
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