Employment Law Update – A new frontier

After many months of speculation the Government has published its response to the consultation on resolving workplace disputes. Business Secretary Vince Cable announced large scale changes to employment law as we currently know it.

Significant changes will include an increase in the qualifying period for an employee to bring an Unfair Dismissal claim to two years (it is currently one year’s continuous service), a compulsory lodging of all claims with ACAS to attempt conciliation before they may proceed to the Employment Tribunal (‘ET’) and a consultation on the introduction of “protected conversations”.

Whilst the above items were widely anticipated (by that I mean leaked to the press a long time ago) I want to concentrate on the review of the tribunal procedure to be undertaken by Mr Justice Underhill.

At present, unlike the civil courts, there is no fee to issue a claim in the ET; the review is to consider (amongst other things) whether there should be. The question of an issue fee (or a deposit refundable in the event of a successful claim) has proved to be an emotive subject; employees argue that doing so would prevent those impecunious claimants from bringing a claim, employers argue that the current system is open to abuse and allows nuisance claims with limited merit to be settled on a commercial basis.

The issue becomes even more emotive for Claimants in the context that the government is removing Legal Aid in most employment matters (save for legal advice on discrimination claims prior to issue in the ET). Such a position will leave many Claimants unclear as to their legal position which, when combined with the necessity for an issue fee/deposit, may further deter those with otherwise valid claims.

Therefore, I anticipate that any issue fee/deposit required will be set quite low (circa £50-£100) which may not filter out the nuisance claims and leave much unchanged.

With that in mind, one has to query where the cost-saving element for the government will come in all of this. If the planned compulsory lodging of all potential claims with ACAS proceeds then it is arguable that ACAS will become overburdened with potential Claimants ‘lodging’ their grievances and obtaining (or at least attempting to obtain) Legal Aid advice in all but name. The difference being that ACAS (as a conciliatory body) are not able to give the Claimants what they seek and may give rise to a position where Claimants do not know their legal position, have unrealistic expectations of what they (or ACAS on their behalf) can achieve and cause further injustice.

Therefore, the pre-lodging of claims may not have much effect other than add a further procedural hoop for all parties to jump through meaning that those with the means could still proceed to issue regardless and ‘have their day at the ET’ leaving those without the means having to drop their case in a cloud of uncertainty and stress. I await Mr Justice Underhill’s with interest.

The Backhouse Solicitors Team

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