Employment Law Alert

Magic Roundabout or Helter Skelter- Employment Law changes

Employers welcome proposals to simplify employment law. However as Nick Clegg said on another matter; ‘be careful what you wish for’. In other words an idealogically driven and rather hysterical stab at change might lead to further confusion and complexity. It is clear  that some proposals have just not been thought through.

Intentions that grabbed most comment are:

Protected conversations which cannot be later raised at tribunals have been proposed. This might sound great at first blush to the manager with the difficult team member but on exam the concept is seriously flawed. At the same time capable employers already have the instruments to deal with difficult employees in a similar and effective way via the good old informal-discipline or ‘counselling’ and step one, verbal warnings.

Introducing fees for employees who wish to bring a tribunal claim will take effect next year. The rates are surprisingly high and may a) deter some claims and b) produce more cost to employers who lose their case. The fee level does not seem to align the tribunal process with the civil court.

The two year qualifying period took force for employment beginning April 2012. This makes people with less than two years’ continuous employment vulnerable to arbitrary dismissal but is one way of creating a “flexible workforce”. However, those deprived of the right to claim unfair dismissal will be forced to consider bringing far more complicated and costly claims for discrimination. For example younger workers new to the labor market by virtue of age, women returning to work following time off to have children and ethnic minority and disabled employees determined to get a foothold in employment. Further the notion an employer will decide to employ or not to employ someone to do an essential job on this basis beggars belief. Clearly the government has no faith in employer’s capability to manage effectively.

“Give firms freedom to sack their slackers” is a less well known about proposal but an insight into where the Government would like to go. A confidential Downing Street report recommends abolishing the law of unfair dismissal where an employee is operating below true capacity. The proposal, is not surprisingly said to be favoured by the PM and the Chancellor. As a fellow anti-slacker of the premier league and proud of it, I do prefer to deal with my slackers on an even playing field and align with an independent commentator who said; “just wait until it is you, or your wife, son, daughter, or parent who is said to be slacking and thus sent packing” (on a subjective, potentially capricious, basis).

Beneath the headlines there are 19 key proposals and recommendations including those on sickness absence.

  • The unfair dismissal qualifying period will double from one year to two years from April 2012
  • Employees will be required to submit details of their complaint to ACAS, giving parties the opportunity to resolve their dispute through conciliation, before going to tribunal
  • The Government will consult on the introduction of a system of “protected conversations” in 2012, allowing employers to raise issues such as retirement or poor performance openly with staff, without this being used in subsequent tribunal claims
  • The Government will consult on simplifying compromise agreements (to be renamed “settlement agreements”) where “sums paid are laid down in law”
  • There will be a root-and-branch independent review of employment tribunal rules of procedure
  • Financial penalties will be introduced for employers who breach employment rights
  • The Government will consider whether it can introduce a “rapid resolution” scheme, to provide quicker, cheaper, determinations in low value, straightforward claims
  • The Beecroft report commissioned by David Cameron recommends abolishing unfair dismissal in cases of under-performance allowing ‘at will’ dissmissal in exchange for a redundancy payment
  • There are plans to close a “loophole”, to prevent employees from being protected under whistleblowing legislation when they blow the whistle about breaches relating to their own employment contracts.
  • 10. The 90 day consultation period over redundancies will be reviewed to asses if a reduction to 60, 45 or even 30 days is workable.
  • 11. The Transfer of Undertakings (Protection of Employment) Regulations 2006 will be examined to see if they can be simplified.
  • 12. Fees will be introduced for bringing claims before an employment tribunal.
  • 13. A new “Independent Assessment Service” (IAS) should be set up funded by government. The IAS would provide an in-depth assessment of a sick individual’s physical and/or mental function.
  • 14. Fit note guidance should be reviewed to ensure that judgments about fitness to work move away from only job-specific assessments.
  • 15. Expenditure by employers targeted at keeping sick employees in work (or speeding their return to work) such as medical treatments or vocational rehabilitation should attract tax relief.
  • 16. Record-keeping obligations under SSP should be abolished, helping to reduce employer administrative burdens.
  • 17. The Government should update its Employers Charter to address misconceptions around sickness absence management, especially legal uncertainty.
  • 18. Public sector employers should take immediate action to bring the worst performing parts of the public sector up to the standards of the best. The Government should also review occupational sick pay in the public sector.
  • 19. A new “job-brokering” service should be introduced to help long-term sick employees find new work (where appropriate) before they fall onto the benefits system.

Overall this reeks of the nanny state; government stepping in to do the employer’s job for them, while certain classes of people are clearly being disadvantaged without real benefit to the economy.