My typically positive outlook has been tested greatly in the last 2 weeks. There was I looking forward to a new year, and all the challenges and rewards it will doubtless bring in varying measure.
Have I been allowed to settle gently into 2013? Have I heck.
The words “New Year, New You” have been niggling for 2 whole weeks now. Newspapers, magazines, radio and television broadcasts, social media. It seems that no-one should be satisfied with themselves on any front, what they eat, how they behave or what they wear. Is it acceptable to be anything less than perfect?
Change is of course a Good Thing when it is appropriate and necessary, and is backed up by sound reasoning. But change for change’s sake, whether it be personal or professional is usually doomed to fail.
Which brings me neatly on to employment law (as was always going to be the case!).
An area where change is undoubtedly a Good Thing has to be the new Employment Tribunal Rules of Procedure, expected to come into force in April 2013. The Government asked us in the Modern Workplaces consultation what could be done to improve the Tribunal process. Respondents to the consultation highlighted the complicated nature of the procedural rules. This led to the appointment of Mr Justice Underhill (together with a group of vastly experienced employment practitioners – the ultimate employment law dream team) to carry out a fundamental review.
A draft set of Rules was presented to the Department for Business Innovation and Skills (BIS) last summer and has since been subject to a public consultation. The Government’s response to the consultation is awaited and is anticipated to be released in the next few weeks with the new Rules in place for claims brought from April 2013 (existing cases will continue under the 2004 Rules).
The new draft Rules are sensible, straightforward and user friendly and I expect the final version to be little different. Hurrah for common sense! I for one am looking forwards to seeing how they will impact on the Tribunal system and contribute to the efficient yet fair disposal of cases.
What is so important, is that they will come into being partly thanks to the responses of those interested parties who spent their time engaging in the Government consultation, not to mention the efforts of Mr Justice Underhill and those who worked with him. They will be, in a way, the people’s Rules (“people” in this context being the users of the Tribunal system and their representatives).
The process has been little short of a masterclass in how to make appropriate and necessary changes to employment law, based on sound reasoning and cogent evidence, consulted upon extensively and involving qualified experts.
If only it was all done like that.
The recent example of the “employee shareholders” (a.k.a. “employee owners”, “owner employees”, “rights for shares”) consultation could not have been far further from the shining example above. I have already written at length about this here and here, but to recap in brief: George Osborne revealed the idea in his speech to the Conservative Party conference. Commentators pointed out, shall we say, difficulties (understatement of 2012) with the concept. A consultation was launched on 18 October 2012 (online only) lasting just 3 weeks. In mid-December 2012, the Government published its response. Despite only a “very small” number of respondents welcoming the proposal (just 3 of 209 envisaged using the new status), it will be going ahead anyway. Sigh.
The aim of the proposal as presented is apparently to increase employer confidence to hire people without the perceived “burden” of employment law. Forgive me for pointing out the obvious (again, this is getting to be a habit), but adding another category of employment status that has all the rights of workers and some but not all rights of employees, is really not the answer. The answer (in part) would to clarify the existing position so that businesses can make an informed choice rather than suffering unintended consequences of taking action inconsistent with the designated status of a given individual. The existing concepts already allow employers flexibility – if only they knew it. Change for change’s sake I fear.
Another prime example is the concept of “pre-termination negotiations” being inadmissible in Employment Tribunal proceedings. A new statutory provision is imminent (section 12 of the Enterprise and Regulatory Reform Bill) which broadly overlaps and will not displace the existing doctrine of “without prejudice”. Why do we need that? It seems to me that the Government’s desire to be seen to be addressing the concerns of employers causes it to make grand claims that it will “do something” about employment law. But when it comes to drafting the legislation, the realisation dawns that what is already there is already working quite well and taking existing concepts much further in the favour of employers is just too risky from a political perspective (hence the loss of the new statutory protection for employers where “improper behaviour” is committed, in much the same fashion as the loss of without prejudice protection where there is “unambiguous impropriety”). It’s not perfect, but it’s jogging along alright in its current form. And the inevitable mis-reporting by certain quarters of the media will lull some employers into a false sense of security and probably result in more litigation, not less.
Change for change’s sake perhaps?
And finally (for today at least), a word on the Acas Code which according to BIS “we’re currently writing an updated version” (surely they mean that Acas is writing it….?!). Yes, there are aspects of the 2009 Code that may benefit from a little clarification, but for the most part, it works. It’s not perfect, but it does a great job at helping employers and employees pick their way through workplace disputes.
So please, please (please?) dear Government, don’t interfere too much with the Acas Code. The last Government that thought individual workplace dispute resolution needed a good shake up gave us the Statutory Dispute Resolution Procedures, and look what happened there (if anyone needs reminding, they were universally acknowledged to be a Bad Thing and were ditched within 5 years, but not before countless cases came to be determined on technicalities rather than true principles of fairness).
Change for change’s sake? A waste of time, effort and public money I’m afraid. Now, pass me a chocolate biscuit.