On 27th January, the Government announced its proposals to reform the Employment Tribunal process. Hopefully, it will redress some of the balance which has previously been tipped significantly in favour of the employee. Many are saying it doesn’t go far enough, but it is a step in right direction.
It is proposed that:
- An employee will need two years’ service before being ‘qualified’ to bring a claim for unfair dismissal. This is an increase of one year which could well be useful to employers, reducing some of the time pressures that come with performance management processes.
- A fee will be payable by would-be claimants (of up to £500) before a claim will be issued. This should reduce the ‘have a go’ culture that currently exists.
- Claimants will be required to file a Preliminary Schedule of Loss (an estimate of the value of their claim) at the start of the case. This will mean employers have more information available to them to be able to decide whether to defend a case or reach a commercial settlement much earlier than they are currently able.
- Claimants will be required to issue a Pre-claim Conciliation Form (a draft of their claims) which will be sent to ACAS. The case will then be placed on hold for a mandatory period of one month to see what, if any, common ground can be agreed between the parties to avoid the claim progressing.
- Employment judges will hear cases alone rather than with two lay members, hopefully reducing the length of hearings, legal fees and the amount of time spent out of a business for the employer and any witnesses.
- Witness statements will be accepted as evidence-in-chief. This could mean witnesses do not have to read them aloud in the tribunal. Cross-examination will still take place but the advantages are as detailed above, reducing the length of the hearing and consequently legal fees and time out of the business.
What the proposals do not address, and what needs to be addressed, are awards of costs. Often costs incurred by employers in defending their name and reputation can run into thousands of pounds and, even if successful, employers ‘lose’ as there is no real provision for the recovery of their costs. This fact is often used as a bargaining tool by claimants in reaching settlements and until costs awards are fairer, this will remain the case.
The Government has also produced an ‘Employer’s Charter’ setting out employers’ rights, what they can do and say to their employees (most of which is, of course, subject to a reasonable process). It’s interesting to note that it stretches to all of 1 ½ pages!
So whilst employers may see this as a step in the right direction, it is, in my opinion, only a small one on the ladder of fairness.
Deborah Boylan is Head of the Employment Law Unit and an accredited CEDR mediator. She deals with a wide range of employment matters including employment documentation, dismissal and redundancy, tribunal work, dispute resolution and general advice on strategy and HR planning. She is a member of the Employment Lawyers Association (ELA).
The Raworths Employment team will be holding seminars for employers on the latest changes in Employment Law on 15th March at the Imperial Rooms at Bettys in Harrogate. These free seminars provide a comprehensive update and explanation of all the legislative changes due in April 2011 that will affect employers. For more information on how to book, please contact Pauline Sellers on 01423 566666 or email pauline.sellers@raworths.co.uk.
If you need any help on any employment law issues, contact Raworths, telephone 01423 566666 or visit our offices at Eton House, 89 Station Parade, Harrogate HG1 1HF. Alternatively you can email deborah.boylan@raworths.co.uk or sally.togher@raworths.co.uk
