“Radical” Employment Law Reforms for 2012 and beyond

Author: Mike Tremeer

On 23 November 2011, Business Secretary Vince Cable gave a speech announcing an extensive programme of employment law reviews and reforms to be carried out by the coalition government as part of its cutting business red tape agenda. Below we consider the committed reforms further and look forward to those where consultation and discussion remain to take place.

Committed reforms

As rumoured in recent months, Mr Cable announced the intention to double the qualifying service requirement for unfair dismissal claims from one to two years. Whilst this is intended to "give greater confidence to employers in recruiting new employees, without undermining workers’ sense of job security", it is difficult to see how these competing and apparently contradictory aims can be met simultaneously.

One of the worries for employers which would result from this change is a possible increase in discrimination and whistleblowing claims from employees with less than two years of service. With discrimination claims in particular being relatively complex and so time consuming to defend, compared to straightforward unfair dismissal, any cost saving for employers risks being diminished.

The change is apparently to be introduced in April 2012 and so employers planning on recruiting in the New Year may consider delaying any start dates until after this time to take advantage of the benefit.

In another attempt to reduce the number of claims pursued at an employment tribunal, plans have also been announced to require claimants to submit their complaint to ACAS before any claim may be lodged. This appears to be a throwback to the Statutory Dismissal and Disciplinary Procedures in place prior to the 2009 ACAS Code of Practice when employees were required to raise a grievance with their employers before their claim could proceed in an employment tribunal.

An unintended by-product of the Statutory Procedures was a wealth of preliminary issues and disputes about what constituted a grievance. This could also develop to be a legitimate concern of the new proposals, although the impartial input of ACAS may well prove to be more conducive to constructive discussion between the parties than the previous regime.

It has also been confirmed that changes will be made so that concerns raised by employees about breaches of their own contract of employment by their employer will no longer amount to a protected disclosure under whistleblowing legislation. Mr Cable confirmed "this is not what the legislation is designed to achieve and we are going to stop this in the future."

Finally, it was also confirmed that, from 2013, CRB checks will be portable between employers, meaning that it will no longer be necessary to obtain a new report for each employment. This will provide "long overdue" and significant savings to employers in the care and education sectors.

Further consultation

Mr Cable also revealed plans for consultation and further discussion on a number of further changes that may be introduced to help reduce the burden on employers including:

  • introducing "protected conversations" under which employers will be able to raise poor performance or retirement plans with employees without risk of those discussions being used as evidence against them in future claims;
  • introducing a fee structure for individuals to pursue an employment tribunal claim – whilst stressing that these should not amount to a barrier to justice;
  • reducing the prescribed minimum collective consultation redundancy periods from the current 90 days to either 60, 45 or 30 days;
  • reviewing the efficiency of the 2006 TUPE Regulations for business; and
  • continuing to review and address work and family life balance – particularly in respect of the growing role of fathers in raising children.

Whilst it remains to be seen what, if any, changes will result from such discussions, the clear communication in this respect does provide an interesting insight into the intentions and internal views of the current government.

Michael Tremeer, Solicitor, Fladgate LLP (mtremeer@fladgate.com)

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