Give and take in employment law

Give and take in employment law

Frances Barker looks at the changes to employment tribunals ahead and the ongoing consultation on ‘modern workforces’ which companies will have to take in their stride.

Give and take seems to summarise the Coalition Government’s focus for 2013. Firstly, the Government intends to make settling employment claims easier and the employment tribunal process less attractive to claimants.

Secondly, the trade-off for employees is that the Government wants to strengthen family friendly rights and flexible working.

Tribunal reform: The stand-out reform is the introduction of fees for lodging employment tribunal claims. At present, there is no fee for bringing an employment tribunal claim, which many feel encourages spurious claims.

From summer 2013, there will be fees for issuing a claim and for going to hearing. Relatively straightforward level 1 claims (e.g. for notice pay) will have a lower fee than more complicated level 2 claims (e.g. unfair dismissal).

The fees are: In addition to the confirmed fees, the Enterprise and Regulatory Reform Bill 2012-13 (the Bill) is also going through Parliament. Although still in draft, this includes further proposals to change the tribunal process. For instance, a requirement on the employee to undertake pre-claim conciliation (through ACAS) before he/she can bring a formal claim.

In addition to the Bill, the Government will launch separate consultation on a possible Rapid Resolution Scheme. This would involve quicker determination of low-value employment disputes on the papers only, determined by an independent person rather than a judge

Frank discussions and settlement: The Bill also proposes allowing protected discussions. The existing “without prejudice” rules protect certain discussions with employees, so that they cannot be used as evidence in a subsequent hearing.

However, the existing protection is limited to when parties are already in dispute. So, often, employers fear being accused of forcing an employee out by starting discussions early when a dispute may not have arisen.

The Bill proposes that the protection should be extended to whenever an employer wants to discuss with an employee terminating employment.

In hand with this, the Bill also introduces the concept of settlement agreements. These are a simplified version of the current compromise agreement.

Family friendly rights and other developments: Separate from the Bill, there has also been consultation on ‘modern workforces’. This proposes a new system of flexible parental leave allowing parents to share between them 50 weeks of leave after a baby is born or adopted.

The idea is that the parents will be able to choose how to divide leave, which could see parents off at the same time, subject to agreement with their employers. The combined amount of leave won’t exceed the total amount of maternity leave currently available.

There is also a proposal to extend the right to request flexible working to all employees with 26 weeks’ continuous employment. Other potential employer-friendly changes to watch out for are: (i) Simplification of service provision changes under the Transfer of Undertakings (Protection of Employment) Regulations (TUPE); (ii) Reduction of the 90 day minimum consultation period for collective redundancy of 100 or more employees; and... (iii) Narrowing of protected disclosures under whistleblowing legislation, so that they only cover disclosures in the public interest. Give and take?

Most employers are likely to welcome the reforms to the tribunal procedure, the concept of protected discussions and simpler settlements. However, the devil is in the detail and the extension of family friendly rights is likely to increase the burden on employers. From our experience, what most employers want is certainty.

The wind of change is arguably blowing in the employer’s favour. But 2013 is likely to be less certain than previous years, given the extent of the changes proposed.

Frances Barker is employment solicitor at Muckle LLP in Newcastle.