As most of you will be aware, today has seen confirmation that it is the intention of the Government to increase the qualifying period from one to two years for a claim of unfair dismissal and to introduce fees in order to bring Employment Tribunal claims.
This has caused a lot of concern, particularly from those who believe that these measures will be counterproductive and will have the opposite effect to their purported intent. I thought it would be helpful if I could summarise some of the very good points that have been made on twitter today.
You can see a lot of these ideas yourself, using the #ukemplaw hashtag on twitter. Also, Daniel Barnett has sent around one of his excellent bulletins, which I would also suggest reading.
Increasing the Qualifying Period from One Year to Two Years
There are two principle objections to the increase of the qualifying period.
The first is that it will most likely result in an increase in discrimination and whistleblowing claims (a subject that I intend to blog on in the near future). An employee faced with an inability to bring a claim of unfair dismissal, will look for other ways in which to bring such a claim. Discrimination and whistleblowing claims will result in longer, more complex hearings.
The second is that the raising of the qualifying period may be indirectly discriminatory. This has been litigated previously, but will need to be looked at again in light of society in 2011. It should be emphasised that this is a complicated point. In a nutshell, the argument is that any excessive qualifying period is indirectly discriminatory as it causes a particular disadvantage in its impact on those with certain protected characteristics. That is to say, those with some protected characteristics are statistically less likely to achieve the necessary qualifying service when compared with groups that do not have the protected characteristic.
However, there is also a third, more practical point, which I have raised previously. Namely, it will not affect job creation. A competent employer will not say “Ah yes, I would have hired that person, but for the fact that the qualifying period for unfair dismissal is one year not two, as one year is not sufficient time in which to make up my mind as to whether or not I wish to retain them.” What it may do, is affect the way in which employers treat their employees who have achieved one year of service(and thereby some sort of relationship has been entrenched) with such resulting treatment most likely causing increased bitterness and potentially being the very facts upon which a discrimination or whistleblowing claim is brought. In a sentence, it is bad for industrial relations and it is counterproductive.
The Introduction of Tribunal Fees
At the time of writing, the unconfirmed rumour is that Claimants will pay a fee of £250 in order to bring a claim in the Employment Tribunal. They will pay a further £1000 in order to have the claim listed, with the fees being higher if the claim is above £30,000.
A successful Claimant will have their fees returned to them. We are told that there will be some form of fee remission for the worst off, but the specifics have yet to be announced.
At present, the following points have been made:
- There will be less early settlements as employers wait to see if a Claimant can afford the £1000 fee
- The fees suggested go beyond that which are charged in small claims in the County Court
- At what point in case management will the figure of £30,000 be applied? How will this be administered?
- If fee remission is attached to benefit entitlement (this is not yet established) what happens to those who have been refused benefits due to the reason for their dismissal?
- Who pays the fees if the case settles?
- Who pays the fees if the case is withdrawn following settlement on a compromise agreement? Are employers expected to pay in these circumstances?
- Will an employee who is unfairly dismissed but is awarded no compensation either via 100% contribution or Polkey (n.b in a redundancy most basic awards are extinguished by the redundancy payment) be able to reclaim their fees?
- Is it right to say that the greatest impact is likely to fall on those who remain in employment but claim that they have been discriminated against?
I have a balanced practice, acting for both employers and employees. Tribunal fees will serve neither party. They will increase legalism and add to the administrative burden of a Tribunal system that is presently having real difficulties administering the system, without the added burden of fees and fee assessments.