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.
- – 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.
- - 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.
- - 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.