The proposals include an extension from one to two years as the minimum period before an unfair dismissal claim can be submitted; the introduction of a modest fee, repayable if the claim succeeds, for those who wish to take out a tribunal claim; a requirement for claims to be submitted to ACAS for conciliation prior to going to the tribunal system; and procedural reforms such as allowing employment judges to sit alone (without “lay” members) for a wider range of jurisdictions.
The two-year minimum before employment protection kicks in is a good idea, but is unlikely to have much impact in the short run as most claims are made by people who have been employed for longer than this. It may encourage more people to try to link unfair dismissal with a claim of discrimination of some sort – and there are very few employees who are not in a “protected group” of one kind or another (gender, age, religion, sexual orientation, disability etc). All such claims are feasible from day one of employment – indeed before joining, as unfairness in recruitment is also a ground for a claim.
And there is no upper limit on compensation for discrimination. A change to this aspect of the law would really be a shake-up, but there is no sign of such an idea in Mr Cable’s consultation document.
The proposal to introduce a fee may have a marginal deterrent effect, but the levels suggested so far – from £50 to £500 – are not likely to have much impact. Many claims are backed by unions, quangos or charities in any case.
Moreover, it appears from the consultation document that this is a sort of user charge, comparable to that in other areas of litigation, and that employers may also have to pay. Not very employer-friendly after all, then – and the consultation document also proposes a new system of fines on employers who are found guilty of a breach of employment law, in addition to the compensation they already have to pay successful claimants. No mention of this in the press coverage.
The requirement to submit claims to ACAS first sounds sensible, but is unlikely to produce outcomes much different from the current system, where ACAS has a duty to offer conciliation to all those submitting tribunal claims. Very many claims are already conciliated at this stage. The new proposal may increase these numbers a little, though whether this is necessarily a good thing isn’t clear: many employers settle at this stage to avoid further cost, rather than because they have accepted that they were in the wrong. Note however that ACAS will have to do this extra work with no extra funding, so it is reasonable to predict growing backlogs in the system.
As for procedural reforms, we have already had a number of these over the last decade, but numbers seeking tribunal redress (236,000 accepted in the last year) continue to grow.
So my first reaction to the proposals is that they are gestures rather than a serious attempt to turn back the tide of employment regulation. And they need to be set against Coalition legislation on equality, parental leave and mandatory retirement which can only add to the pressures on the tribunal system – and, more importantly, on employers.