Archive for November, 2011

Employment law reforms

Employment law advisers in Bristol, and throughout the United Kingdom, need to be aware of the following proposals put forward by the government:

  • From next April, employees will only be allowed to complain of unfair dismissal after two years continuous employment, instead of the current rquirement of one year.
  • Fees will be introduced for claims to employment tribunals.
  • Firms employing 10 people or less will be exempt from claims for unfair dismissal.

These changes will significantly weaken the legal position of employees. Advisers are aware that UK employment law, despite its complexity and imperfections, generally operates to protect employees from the worst abuses of their employers.

This protection has not been generously granted by employers. It is the result of decades of struggle by working people to improve their position.

The government now seeks to go down the American “hire and fire” road. It seeks to lay the blame for the current economic debacle on workers’ legal rights. This can only be characterised as a vile slander on the British working class.

The government is able, with the support of the Liberal Democrats, to tamper with these aspects of employment law because the rules dealing with unfair dismissal and employment tribunal procedure are British creations. There remain large areas of employment protection, for example discrimination law, which are basically European in origin and which cannot be dilutes so long as the UK remains signed up to European Union employment laws.

Employment law advisers, when the changes are introduced, will need to be more creative in their approach to standing firm on employees’ rights. Claims which were previously brought under the umbrella of unfair dismissal may now be considered in a fresh light, for example as discrimination issues, harassment or personal injury claims.

Employment advisers who seek to preserve employees’ rights have duty to oppose the government proposals. There must be no return to Victorian employment practices.

Public Access Barristers

I have been in practice in Bristol since 1993. My practice has mainly involved advice in employment law matters. Bristol has a very wide range of types of employment, and there has been a steady flow of clients seeking advice in relation to employment law issues.

Until recently, clients seeking advice on employment law could only instruct a barrister through a solicitor. The profession of barrister was purely consultative. This could result in the position that clients seeking advice on employment law might have to pay twice for advice – once to the solicitor and again to the barrister where the solicitor passed the matter on.

Fortunately, this rule has now been relaxed. Employers and employees seeking advice on employment law matters can now go directly to a barrister. There are certain rules still in force which restrict the scope of a barrrister’s work in public access, but the general principle is that advice on employment law matters can now be obtained from these Chambers without the intervention of a solicitor. This means that the expertise of a barrister with significant experience in employment law can be obtained at significantly less cost.

Most employers and employees are aware that employment law can be complex. It is rapidly changing – decided cases are currently running at a rough average of three or four each week. Coherent advice on employment law can now be accessed more easily, and at less cost, thanks to the introduction of public access to barristers.

Employment law

In the context of general employment law the rules have become so detailed, complex and obscure that non-lawyers have little chance of understanding them. In Bristol, we have found that advice on employment law issues often involves explaining legal issues which are relevant to clients’ everydat working lives but which they find very difficult to understand.

Suffolk Mental Health Partnership NHS Trust v Hunt and Others (2009)

This case involved the level of detail which should be included in a written grievance relating to an equal pay claim.

Lord Justice Pill made the following comment:

  • The encouragement of negotiation, conciliation and settlement might be frustrated if the grievance procedure led to satellite litigation on technical issues about whether a statement amounted to a grievance.

Lord Justice Wall added the following:

  • Employment-related issues which were designed to be simple and understood by ordinary working people had become overlaid with degrees of sophisticated argument which at times render them unrecognisable.
  • Employment tribunals were set up as fora in which ordinary working men and women could bring claims which they had been unable to resolve in the workplace with a view to swift and straightforward resolution. To this end, the rules relating to representation were very relaxed, case management powers are wide and costs were only to be awarded in extreme circumstances.
  • His experience was that these essentially worthy aims were in grave danger of being frustrated by over-elaborate and sophisticated argument unintelligible to the layman.
  • His layman’s plea was that there should be a return to the clear intentions underlying the establishment of the employment tribunal system; that lawyers should strive for clarity and simplicity and that unions and employers should strive to make the system work in the interests of ordinary working people.

Fixed-term employment contracts

Some employers have tried to get round the rule that employees have to work for a year before being able to complain of unfair dismissal by employing them on a series of fixed-term contracts, often for 364 days at a time.

It was recognised that something should be done about this attempted evasion of employment protection law. What eventually emerged was the familiar result – a scheme of such obscurity and complexity that no-one without access to a law library could possibly understand it. This has caused real hardship to those who try to assert their employment rights.

The lawmakers (and, no doubt the parliamentary draftspersons) tried to deal with the issue by the use of procedural requirements and fictions. These are so far removed from the realities of people’s day-to-day working lives that they achieve a kind of abstract, illusory fascination comparable to a hard-fought game of chess. One aspect of this is that a person whose fixed-term contract comes to an end is deemed to have been “dismissed”. This immediately imposes a legal fiction upon a crucial everyday reality. The employee has not been “dismissed” or sacked, as most workers would say. She will certainly not tell future prospective employers that she was dismissed, but rather that her fixed-term contract expired.

If employers are using fixed-term contracts to avoid legal protection for their employees, there are two simple ways of dealing with this which everyone could understand:

  1. Make fixed-term contracts unlawful.
  2. Give employees the right to complain of unfair dismissal as soon as they start work.

Employment Act 2002 (Dispute Resolution) Regulations 2004

Regulation 13: Extension of time limits

“(1) Where a complaint is presented to an employment tribunal under a jurisdiction listed in Schedule 3 or 4 and

(a)    either of the dismissal and disciplinary procedures is the applicable statutory procedure and the circumstances specified in paragraph (2) apply; or

(b)   either of the grievance procedures is the applicable statutory procedure and the circumstances specified in paragraph (3) apply;

the normal time limit for presenting the complaint is extended for a period of three months beginning with the day after the day on which it would otherwise have expired ….

(3) The circumstances referred to in paragraph (1) (b) are that the employee presents a complaint to a tribunal –

(a)    within the normal time limit for presenting the complaint but in circumstances in which section 32(2) or (3) of the 2002 Act does not permit him to do so; or

(b)   after the expiry of the normal time limit for presenting the complaint, having complied with paragraph 6 or 9 of Schedule 2 in relation to his grievance within that normal time limit ….”

This is very difficult for experienced employment lawyers to understand, and needs access to statutory source material. For even the most determined, articulate and highly-educated non-lawyer, it is impenetrable. This sort of convoluted draftsmanship takes employment law even further away from the grasp of wronged employees and into the control of professional specialists.

The aim of these Regulations was to reduce the number of applications to the employment tribunal by encouraging the resolution of disputes before tribunal proceedings were started. It was, essentially, a cost-cutting exercise.

This was done in such a clumsy, obscure and legalistic way that the system was unworkable. It created more work for lawyers and moved employment law even further away from workers. The scheme has been described as disastrous and scandalous by many employment lawyers. It has now, thankfully, been scrapped but has left complex transitional provisions.

In one case, for example, an employee of a small charity lodged a grievance on a CD, comprising 500 pages of detailed complaints. This came within the definition of “grievance” for the purposes of the dispute resolution regulations (there was no definition) and the cumbersome and obscure machinery of the Regulations swung into place.

Employment Tribunals

Ever since their creation, Employment Tribunals have been free. Their very ethos is access to justice, which is reflected in the overriding objective, which demands that all Tribunals are

“Dealing with a case justly includes, so far as practicable: —
(a)ensuring that the parties are on an equal footing;
(b)dealing with the case in ways which are proportionate to the complexity or importance of the issues;
(c)ensuring that it is dealt with expeditiously and fairly; and
(d)saving expense.”

The recent announcement that Employment Tribunals are due to start charging thus comes as a bit of surprise. The amount isn’t nominal either. Workers will now face between £150-£250 charge to make an application, and a further £1,000 for a hearing, assuming the claim is under £30,000. For a large and complicated case, this can perhaps be soaked up in legal and general litigation costs. However, what about an unpaid wages claim? When an employer withholds wages from an employee that they are due? The proposals mean that the employee will have to pay to receive their wages. Of course, this fee will be recoverable if the case is won, but that will be stark relief for the majority of employees. For some cases, the fee will be more than the case is worth. Is this really ensuring that a case is dealt with justly?