Over recent months the Coalition Government has referred to
potential areas for review and on 28 September 2011 it published
proposals in a paper entitled "One-In, One-Out: Second
Statement of New Regulation".
Of key importance to all employers were the following:
- An increase in the qualifying period for employees to be able to bring a claim for 'ordinary' unfair dismissal from one to two years;
- The introduction of fees for bringing an Employment Tribunal case; and
- The potential removal of the requirement under the Equality Act
2010 for employers to take reasonable steps to prevent harassment
of their staff by third parties.
However, the Government has not yet indicated how it proposes to
remove the 'gold plating' of EU based rights, for
instance in relation to TUPE.
1. – The increase in the qualifying period from one to
two years was confirmed on 3 October 2011 by Business Secretary
Vince Cable and Chancellor George Osborne and will come into force
on 6 April 2012. The Government's stated aim is to increase
business confidence to take on more workers and so promote growth
in the economy.
Interestingly, the one year qualifying period was originally
introduced because the longer period of two years was
discriminatory against women (R (Seymour-Smith) v Secretary of
State for Employment (2000) UKHL 12). It has been suggested
that younger people would also be affected by the increase
(research based on statistics and published by
agediscrimination.info), which could mean that this new law
will be open to challenge when it comes into force next
year.
Governments generally have often been unable to satisfy the Courts
of the need to introduce indirectly discriminatory measures of this
type; the recent changes to the age discrimination regulations
removing the default retirement provisions were themselves hastened
by litigation challenging their lawfulness in the light of their
discriminatory impact.
Finally, there is real concern that this change will do little to
stem the trend over recent years of employees 'without
service' bringing claims of discrimination and
whistle-blowing as a way of avoiding the need to
'qualify' for unfair dismissal rights. Dealing with
those 'no service' claims tends to be far more complex
and time consuming for employers and the Tribunal system than those
of unfair dismissal alone.
2. - The introduction of fees is designed to tackle weak
and/or speculative claims brought in the Employment Tribunal. As it
stands, the proposed fee structure is:
- An upfront fee of £250 will be paid when lodging an ET1 claim;
- A further fee of £1,000 will be payable by the Claimant when the hearing is listed;
- Higher fees will be payable if the claim is for over £30,000;
- The fee will be refunded if the Claimant wins, and forfeited if they lose;and
- The fees will be waived for those with no money.
If the introduction of fees is designed to discourage claims
from being brought, those who will be exempt from payment will need
careful definition. At present, it appears that the
eligibility for waiver of fees will depend on whether the Claimant
is on income support, rather than simply not being in paid
work.
3. - The Government plan to consult on removing the Equality Act
provision that imposes liability on an employer for third party
harassment is part of the wider aim to cut the regulatory burden on
UK employers. In the proposal paper, the Government states that the
current law imposes liability in a situation where the employer has
no direct control and that this change will save employers
£0.3 million a year. However one commentator is of the view that
the saving is not enough to justify the proposal, and that in any
case the point of the current law is to compel employers to act
only where reasonably practicable to protect employees from
harassment by third parties and not in all situations.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
