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Thursday, 22 November 2012 20:47

On the picket line

Written by  David Renton
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Is it safe to come out yet? Those of us who work in employment law have already had to take on board the following changes: (as of this April) the doubling of the period during which an employee needs to be continuously employed in order to bring an unfair dismissal claim, the doubling of the amount of costs an Employment Judge can order without needing to refer the case to the county court, and the phasing out of
lay panellists in all cases save discrimination.

In June, the government published its Employment and Regulatory Reform Bill, which in due course will mean "protected conversations", under which managers will be empowered to force workers – ostensibly by consent – out of their jobs, save that Employment Judges will be banned from asking what was said by each side in the dismissal meetings (which will have taken place directly between manager and worker with no lawyer present) by privilege rules akin to the privilege a lawyer has with her lay client.

From next April, employment lawyers will contend with changes to public funding, with legal help being removed from all categories of claim save discrimination cases.

The government has also announced that from next summer, there will be for the first time fees for issuing Tribunal claims. The fees, at up to £1500, are far higher than the equivalent fees in the county court. To crown the injustice, the fees are to be paid by workers only, with employers paying nothing.

Any readers pausing at this point to draw breath may realise that they have only reached the starting point of the government's plans. For in the middle of September, the government introduced a further three consultations, covering matters as diverse as workers' rights on transfers of employment (which the government belatedly admits it cannot diminish, as the source of the law is European rather than domestic), Tribunal procedure, settlement and compensation.

The most significant change to the procedural rules is a new power that a Judge can strike out a claim at any stage in the process. Gone will be the old fashioned Case Management Discussions, slow, civilised hearings at which the Judge grapples with what the case is about and lists it accordingly. In place of them, every hearing will be what we now call Pre-Hearing Reviews, i.e. hearings, with or without evidence, where the employer jockeys (rarely with success, where the worker is represented) to have the entire claim dismissed with no further hearings.

This "reform" is a government concession to the employer's lobby, with its bogus argument that the majority of Tribunal claims are vexatious (in fact 60% succeed, and only 0.5% are so unreasonable as to attract costs).

Settlement, the government proposes to encourage by introducing a new rule that cases may not be brought until the worker has submitted the claim first to the conciliation service Acas and received back from Acas a certificate that the claim has been lodged with them for a period of time without being settled. It is envisaged that a certain amount of information will be needed to be given to Acas (although what that information will be, the government has not decided), and that Acas will be able to refuse to accept some claims, but there has been no real thinking about what would happen to time limits, eg if the refusal had been misguided.

As an inevitable by-product, this will mean that the limitation periods for introducing tribunal claims which are presently relatively simple (3 months but the time can be extended, in certain exceptional circumstances) will become very complex indeed. It will be rich pickings for respondent lawyers, who will raise time defences in very many cases, but of no benefits to claimants or even to Judges (who face lengthy, complex hearings on issues far from the real subject of the case).

Finally, changes to the maximum compensatory award that can be made for unfair dismissal, will reduce the top award from its present c£72,000 to a future c£26,000. Only a minority of dismissal claimants are in fact awarded more than £26k, but this in part because the highest value claims with the most extraordinary facts, inevitably settle. The workers in this category will have the same complaints, and the cases will have the same outcome (employers will be desperate to keep their bad facts away from the Tribunal), the chief difference is that managers who behave badly will be able to get rid of these cases by throwing less money at them.

David Renton

David Renton

Barrister 
Garden Court Chambers 

Website: www.gardencourtchambers.co.uk/barristers/david_renton.cfm E-mail: This e-mail address is being protected from spambots. You need JavaScript enabled to view it
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