The primary focus of this edition is the Government's latest
proposals for employment law reform. David Green gives us his
opinion on these and we take a look at what we think the likely
outcome of the consultations will be. We have also taken this
opportunity to include a survey based on one of the consultations
and would be very interested to hear your views. We are intending
to feed back into the consultation with the views of our clients
and contacts as well as the views of the Employment Group. Finally,
we give some practical tips following recent cases as well as
updating you with the latest employment-related news.
Proposed Reforms: The musings of a grumpy old
Article by David Green
The Government announced in September, with a great fanfare,
further proposed reforms for employment law (details of which are
below). This followed on from the decision to increase the
qualifying period for unfair dismissal from one year to two years,
which was introduced in April of this year. The Government is now
entering into consultation in respect of these proposed reforms and
one has to ask whether the proposals are real, meaningful reforms
or simply political spin.
In this update we attach a link to a survey we are running for
our clients in respect of one important aspect of the Government
consultations for HR practitioners relating to the ending of the
employment relationship. Whilst I have no wish to influence your
own opinions, I highlight in this opinion piece issues that do need
careful thought before any changes are introduced.
The Government states in its consultation paper that it wants to
facilitate open discussions between employers and employees without
concern that this could be used against either party in the event
of an unfair dismissal claim. The proposals deal only with unfair
dismissal claims because of the constraints of European law in
respect of discrimination.
The first question to ask is whether any of this is necessary?
Surely any employer would have reached a conclusion about an
employee's behaviour and performance within the first two years
of employment and, if that is the reality, then they can dismiss
the employee in those circumstances without facing a claim for
unfair dismissal. What do you think?
The first question to ask is whether any of this is
If it is accepted that change is necessary, then I agree that
calling compromise agreements, settlement agreements is a more
logical name for this process. However, the Government's whole
rationale for this proposal is that it allows discussions to take
place without there being a dispute between the parties. Current
case law means that if there is no dispute between the parties then
any "without prejudice" discussion can be considered by
an employment tribunal. The reality is, however, that employers
have no difficulty in ensuring there is a dispute between the
parties before without prejudice discussions take place, so is any
of this necessary? Opinions please.
The real risk of this proposed legislation is it actually will
achieve the same result as the introduction of statutory
disciplinary and grievance procedures - namely an explosion of
satellite litigation. Yes, this would be good for lawyers but it
certainly would not be good for employers. If you start a
conversation with somebody who is a poor performer, what is to stop
them alleging that their poor performance is linked to childcare,
sick relative care or due to an illness? Discrimination issues will
be raised and the conversation is no longer protected.
The Government is proposing in the Statutory Code that there are
guidelines as to the amount of compensation to be paid. I would ask
all employers whether they want to be bound by such guidelines
because any minimum amount would become the minimum amount you are
expected to offer. The one proposal that I am sure most employers
would want to give consideration to is reducing the amount of
compensation for unfair dismissal. I am sure that this will be
welcomed by all employers and in terms of what that cap should be,
this is your opportunity to make your views known in our survey.
However, one final word of warning. If the unfair dismissal cap is
greatly reduced then, again, an explosion of claims alleging
discrimination may be the unforeseen consequence of such a
In October 2012, the Court of Appeal confirmed that a Service Provision Change ("SPC") TUPE transfer can only occur where the client who receives the service, before and after the change, remains the same (Hunter v McCarrick  EWCA Civ 1399).
Following much debate, on 24 April 2013 the House of Lords finally gave its approval to employee shareholder status which will now take effect from Autumn 2013.
Some comments from our readers… “The articles are extremely timely and highly applicable” “I often find critical information not available elsewhere” “As in-house counsel, Mondaq’s service is of great value”