I apologise upfront for a lack of technical detail and cross references in this post. I hope there are no glaring inaccuracies. As is often the case, it is Sunday afternoon in the car for me and my family travelling back from visiting friends. I have only my laptop and my brain available, no internet and no printed copies of the legislation I’m about to refer to. And once I get home I will throw this on the blog without any further work – it is Sunday after all!
Tomorrow is a BIG DAY for employment law. We’ve all been banging on for weeks (months in some cases) about the 5 measures that will take effect from 29th July 2013 and their potential implications for stakeholders. I’m not about to spend ages setting them out in detail. I actually just want to give my personal take on them because:
a) I couldn’t let tomorrow pass without throwing my opinion into the pot
b) I haven’t blogged for ages
c) Opinions matter (especially mine!)
So here goes:
Employment Tribunal Fees
I have written elsewhere about the potential implications of the introduction of the new fee regime.
As many will already know, the introduction of fees is subject to a legal challenge in England by the trade union Unison. From my position on the A422 in Warwickshire I cannot work out quite where that has got to. What I do know is that fees will be payable from tomorrow. If that challenge is ultimately successful, the fees already charged presumably will need to be reimbursed. Which is all very well if it is HMCTS who is reimbursing them but the mind boggles as to quite how it will be sorted out in cases where a Respondent has been ordered to and had paid a successful Claimant an amount equivalent to the fee as part of their compensation.
Anyway, my feelings about the fee regime are mixed. I am of the view that some fee should be payable to bring a Tribunal claim but I feel that the levels are too high. There will be many legitimate cases that will never be heard, important cases concerning the interpretation of legislation which are clearly in the public interest but which the Claimant will just let go because the remedy is not worth the risk. Cases like Royal Bank of Scotland v Harrison  which gave us important clarification on aspects of the right to time off for dependants. Had Ms Harrison been required to pay a Level 1 fee to bring that case, she may have just lumped her disciplinary warning.
Teago’s Take on Tribunal Fees: Could Do Better.
Confidentiality of Pre-termination Negotiations
A couple of weeks ago, I led a course on Compromise…,sorry, Settlement Agreements. One delegate couldn’t see the point in me even spending time detailing the mechanics of the new s111A of the Employment Rights Act 1996. But I think it is worth spending time on, because I think it will be used.
The good thing about it is that it may give an opportunity for an employer to have a sensible “this isn’t working” discussion without having to construct some sort of “dispute” in order to have a without prejudice discussion.
What concerns me about this measure, is that employers will misunderstand its scope and application and try to invoke the protection in cases where it cannot apply. It is right that employers should not be protected where there is discriminatory reasoning for wanting a person out of their business, and equally for those categories of dismissal for impermissible reasons (a.k.a. “automatically” unfair). But the subtleties of the distinction in some cases will leave employers exposed because they have not taken advice and have misunderstood the law. I’m sorry to say that it will make more work for employment lawyers who get a blooming bad press from some quarters, and who, I would point out, are not the driving force behind all these new measures!
Teago’s Take on confidential pre-termination negotiations: A Trap for the Unwary.
New Employment Tribunal Rules
Hurrah for the new Rules!
I first wrote about this topic back in April 2012. I was, and still am, mightily impressed that the Government went and asked exactly the right people to review them, gave sufficient time for them to do their work and then listened to and implemented the results. If only the same were true of some of the other employment law stuff that has been shoved through (employee owner…, sorry, shareholder anyone? Anyone? *watches tumbleweed drift slowly past*)
I had looked at them in draft form during the consultation stage, and there have been some changes since. So, I spent several days last week with my nose stuck in the new Rules, in order to rewrite the delegate notes for one of the courses I run for BPP (gentle plug).
They are straightforward, practical and written in plain English. Which is exactly as it should be for a system which prides itself on avoiding undue formality in proceedings.
Teago’s Take on the new Employment Tribunal Rules of Procedure: Really Rather Good.
New cap on Unfair Dismissal Compensation
Ok, so I would be one of the first to agree that there are Claimants out there who need their expectations managed. But there are other ways that could have been done. I would have favoured a note on the ET1 form explaining briefly how the Employment Tribunal calculates compensation and links to further information. I’d happily write it, I reckon I could do it in 3 small paragraphs.
But this?? It’s just plain rubbish. Where the median award is just £5,000, there was no justification to further restrict a loss-based award in this way. So there.
Teago’s Take on UFD Compensation Cap: It’s Complete Pants.
Date from which Interest starts to accrue and Increase in Interest on Discrimination Awards
Assuming that there is anyone left in the Employment Tribunal system after all of the above, losing Respondents will have to pay up sooner in order to avoid interest accruing. Interest on discrimination awards is increasing to 8%.
Which is all fair enough. Where a Claimant has won fair and square, why should they wait for their compensation with virtually no incentive for the Respondent to pay up?
Teago’s Take on Interest Changes: Really Rather Sensible.
So there we have it. Incidentally, I am now at home. Up with the lark in the morning to download the new ET1 and ET3 forms and finish those course materials. Just another day in a life dedicated to employment law.