Changes confirmed for April 2012
Further consultations
Calls for evidence
Other legislation under review

The past month has seen a number of government proposals for changes to employment laws. Details were included in a speech made by Business Secretary Vince Cable on November 23 2011; the response from the Department for Business, Innovation and Skills to the Resolving Workplace Disputes consultation; and the chancellor's Autumn Statement.

Changes confirmed for April 2012

The changes for April 2012 are as follows:

  • The qualifying period for unfair dismissal will increase from one year to two years. The department's response alludes to the issue of whether this change could be challenged as discriminatory (eg, on grounds of sex or age). It states that in the department's view, there will be a degree of disparate impact on different groups, but this will not be "considerable". In any event, it considers that the change will be justified as a proportionate means of achieving a legitimate aim (ie, of improving business confidence to recruit and retain staff). It remains to be seen whether the department has sufficient evidence to support this claim.
  • The maximum deposit order that a tribunal can make if a party wishes to proceed with a weak case will increase from £500 to £1,000.
  • The maximum costs that can be awarded by a tribunal without detailed assessment will increase from £10,000 to £20,000.
  • Witness statements will be taken as read unless the tribunal judge directs otherwise.
  • Witness expenses will no longer be state-funded. The tribunal will have the power to direct parties to pay witness costs and order the losing party to reimburse the successful party for these costs.
  • Unfair dismissal cases and all Employment Appeal Tribunal appeals will be heard by a judge alone, unless the judge directs that lay members should also sit.

A number of further changes have been confirmed, but with no date set for their implementation:

  • Claimants will be required to submit details of their complaint to Acas, the Advisory, Conciliation and Arbitration Service, using a new form (which will be shorter than the ET1). They will then be offered pre-claim conciliation for up to one month (with a possible two-week extension). Acas will have a duty to conciliate if requested by the parties, both before and after the claim. The need for additional funding for Acas will apparently be met through savings to be achieved by the reduction in the number of tribunal proceedings.
  • The government will pilot the creation of regional mediation networks by providing mediation training to individuals from local small and medium-sized enterprises, and will also explore how to promote mediation in the retail sector as a pilot for other sectors. Section 147 of the Equality Act 2010 is to be amended to clarify that discrimination complaints can validly be waived through statutory compromise agreements (which are also to be renamed 'settlement agreements' in all relevant legislation).
  • The original proposal for penalties (payable to the Exchequer) to be imposed on employers that are found to have breached employment rights is to be adopted in an amended form. The cap of £5,000 remains, but penalties will no longer be automatic. Instead, judges will have discretion to impose a penalty where the employer's breach has aggravating features (eg, unreasonable behaviour, such as negligence or malice).
  • Annual increases to the maximum tribunal awards and statutory redundancy payments will continue to be linked to the Retail Price Index, but will be rounded to the nearest pound rather than £10 or £100.
  • The government is to make Criminal Records Bureau checks portable and provide an immediate checking service for employers through an online facility from 2013.

Further consultations

Other issues are scheduled for consultation or expected to be addressed soon:

  • The government is considering providing a model text of a settlement agreement and amending the relevant statutory provisions to allow for the effective waiver of existing and future claims (except latent personal injury claims) without the need to list them individually. This should reduce the complexity and cost of settlement agreements. Proposals will be subject to consultation.
  • A consultation will be launched on proposals to allow employers and employees to engage in 'protected conversations' which cannot be referred to in subsequent tribunal proceedings, without the need for a pre-existing formal dispute (as is required for 'without prejudice' protection).
  • The government is developing a proposal to create a rapid resolution scheme for low-value, straightforward claims, possibly by non-judges and on paper. This will be subject to public consultation.
  • A consultation on tribunal fees is expected to commence shortly. Proposals include an issue and listing fee, higher fees for those claiming more than £30,000, and a requirement for losing employers to reimburse fees. Originally, it was suggested that fees might be introduced from April 2013, but subsequent announcements suggest that December 2013 is more likely.
  • The government will consult in Spring 2012 on streamlining the regulation of the recruitment sector.
  • A report is due on the Red Tape Challenge spotlight on employment law in Spring 2012, although it is understood that 40% of the 159 regulations considered are to be merged, simplified or scrapped. The government has yet to consult on its proposal to remove the third-party harassment provisions from the Equality Act 2010.
  • The government has not yet issued its response to the consultation which closed in August 2011 on proposed changes to family-related leave, flexible work, statutory holiday and a tribunal power to order equal pay audits. Cable's speech confirmed an intention to proceed with the extension of the right to request flexible work to all employees, and to modernise new parents' rights.

Calls for evidence

The government has announced that it is seeking views on:

  • compensated no-fault dismissals for micro-employers (ie, employers with 10 employees or fewer); and
  • slimming down dismissal processes, potentially including changes to the Acas Code of Practice on Disciplinary and Grievance Procedures.

It has issued documents calling for evidence by January 31 2012 on:

  • the effectiveness of the Transfer of Undertakings (Protection of Employment) (TUPE) Regulations and, in particular, the provisions covering service provision change, post-transfer harmonisation, transfers from insolvent companies and the inter-relationship between TUPE consultation obligations and collective redundancy consultation; and
  • collective redundancy consultation, including whether a statutory definition of 'establishment' would be helpful and whether the minimum period for consultation where 100 or more dismissals are proposed should be reduced from 90 days, possibly to 60, 45 or 30 days.

The evidence is to be used to formulate policy proposals, which will then be open for public consultation in 2012.

Other legislation under review

Justice Underhill is to lead a fundamental review of the employment tribunal rules of procedure, with the aim of producing revised rules by the end of April 2012. The review will include a consideration of whether legal officers can be used instead of judges for certain tasks. In parallel with the review, the government is to develop a new form for claimants to set out a statement of loss and the procedural guidance provided by tribunals is to be reviewed. The department has decided not to proceed with the idea of allowing Calderbank settlement offers with costs consequences if an offer is not beaten at tribunal, although this may be reconsidered if other reforms fail to deliver the hoped-for reduction in tribunal hearings.

The government is to consider proposals to reform workplace sickness absence, as suggested in the November 22 2011 report by Dame Carol Black and David Frost. The proposals include:

  • creating a new Independent Assessment Service to assess an employee who has been absent for more than four weeks;
  • amending 'fit notes' so that they advise on an employee's ability to work generally, not only in respect of his or her existing job; and
  • establishing a job-brokering service to enable employees who are off sick for 20 weeks to look for jobs elsewhere.

The government has proposed amending whistleblowing law so that it does not apply where an employee is simply complaining about breaches of his or her own employment contract. This would be a very positive step for employers.

The paperwork obligations of the Agency Worker Regulations are to be reviewed in mid-2013.

The 17 sets of national minimum wage regulations are to be simplified.

For further information on this topic please contact Andrew Brown at Herbert Smith LLP by telephone (+44 20 7374 8000), fax (+44 20 7374 0888) or email ([email protected]).