Things to look out for in Employment Law in 2012

 Extending Qualifying Periods for Unfair Dismissal from One to Two years

At present during the first year of a person’s employment they have very limited protection.  Save for limited protection under discrimination and whistleblowing legislation there is very little protection given to employees and employers can by and large just dismiss for any reason they wish providing they pay notice.

In contrast after the first year the employee gains protection from unfair dismissal.  Any employee with this protection can only be dismissed for one of 5 potentially fair reasons and a fair process must be followed.

The Government proposes to extend this one year qualifying period to two years therefore making it easier to dismiss employees during that first two year period.  The hope is to encourage employers to employ more people on the basis that removing them if things go wrong is easier.

We wait to see what the final law will look like and how the Government intends to grapple with issues such as what to do with those who fall between the one and two year periods when the law comes in to effect.  The current intention is however for this change to take effect in April 2012 so we must hear something soon!

Protected Conversations

The Government is to consult this year on the interesting idea of ‘protected conversations’.  Although the detail is yet to be confirmed these conversations would allow employers and employees to have full and frank discussions with one another on issues such as performance or intentions for retirement without those conversations being admissible at an Employment Tribunal.

This effective extension of the legal ‘without prejudice’ rule is laced with technical difficulties such as how would such a conversation commence, how would you have to document such a conversation and how to deal with the issue of damage to trust and confidence between employer and employee that may give rise to a constructive dismissal claim.

It is however an interesting concept and may be welcome by many employers as a way to deal with matters ‘straight down the line’ without having to carefully tip-toe around employees for fear of an Employment Tribunal claim.

Payment of Deposits to Bring a Claim to the Employment Tribunal

This proposal has been bandied around for a little while and although the Coalition Government seems determined to introduce it we are unlikely to see it’s introduction until April 2013 at the earliest.

One of the biggest criticisms of the Tribunal process we experience acting for employers is the feeling that the employee has nothing to lose in bringing an entirely frivolous claim as costs awards are very rarely granted.  Balanced against this is of course the concern not to deter genuine claimants from bringing genuine claims just because of the threat of costs from an employer.  They have in most instances just lost their job after all.

The Government is currently proposing a two pronged approach.  Firstly a relatively modest deposit of £500 must be paid by a disgruntled employee when submitting their claim.  A further deposit of £1,000 would then have to be paid the day before the Final Hearing.  Both deposits would be paid back to the employee if they win but would be forfeit if they lose and retained by the state (not you will no doubt have realised by the employer who has been put to time and cost of successfully defending a claim!),

This is we suspect going to change quite considerably before implementation but the basic structure is likely to be retained.  Although unlikely to financially benefit employers it is likely to be welcomed as a means of flushing out those claims that are completely frivolous.

Alterations to the Employment Tribunal Process 

There are also plans afoot to change Employment Tribunal processes.  Current proposals are;

1)    to allow Judges to hear unfair dismissal claims alone and not require a full panel

2)    to allow witness statements to be ‘taken as read’ rather than requiring witnesses to read their statements to the Tribunal

3)    increase maximum costs awards from £10,000 to £20,000

These changes are likely to come in during the next year if sufficient support can be generated amongst Parliament, lawyers and the public.

Other Developments

We are also likely to see developments in many other areas including the first cases to be brought against companies under the Bribery Act and developments in the law of unfair dismissal and redundancy as the economic difficulties continue well in to 2012.  Plans are to increase unpaid parental leave to 4 months during the first 5 years of a child’s life and pension auto-enrolment is due to come in to effect in October for larger employers.

Summary

2012 is likely to prove a very exciting year for employment lawyers across the country but we suspect less so for employers who have to manage their business at this difficult time whilst keeping abreast of all of these changes.  Nockolds Employment Team are more than happy to assist any business or employee who would like advice or guidance on these or any aspects of employment law.  Please call 01279 712549 to speak to one of our specialists or to arrange an appointment.

Gary Smith (profile) Thursday 5th January 2012
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