The similarities between employment law and Doctor Dolittle are of course striking. Both are a little eccentric among their peers and have at times struggled to be recognised fully. Sometimes they are assisted by monkeys and of course neither can sing. But perhaps most notable of all may be their acquaintance with the ‘pushmi-pullyu’.
When beginning an employment talk a common icebreaker is to ask those present if they feel that employment law has now ‘gone too far’. Without hesitation all hands rise in agreement. While statistically at least one of those present must have happily brought a claim under those very laws, the reaction is understandable. Every year seems to bring another wave of employee protections. The press leap eagerly upon the latest European ‘directive’ and the Confederation of British Industry issues panicked statements. What are less remembered or even noticed are the annual ebbs in that tide when changes are made to limit or even reverse existing legislation. To explain the metaphor, while it is easy to notice the pushmi-pullyu as it advances out of the obvious side of the crate, we do not always appreciate that its opposite face may be at the same time retreating. The increasing size can be an illusion.
This seems to be a year of such reverses. Already we have had confirmation by the Ministry of Justice that, from the summer of 2013, (hereafter to be called the employment tribunal’s first summer of love) fees will become payable in both the tribunal and the Employment Appeal Tribunal. These will depend upon the type of claim and will be payable in two stages. For a claimant in a single unfair dismissal claim, these will be first an initial fee of £250 (or the amount of money someone might otherwise have spent taking a little sensible advice before wasting the tribunal’s time). Then if it progresses, they will have to pay a hearing fee of £950. Neither sum seems particularly significant, unless of course it is your own money. Further fees can be payable depending on specific requirements, including certain interlocutory applications or, for example, multiple claims. It is my hope these will be documented in the form of a spa-style menu. I particularly like the idea of the unsuccessful party getting seaweed treatment.
As might be expected, the unions have reacted with anger, branding this a ‘disgrace’. Business leaders have by contrast complained that the rules will be totally undermined as ‘most’ employees will be exempt on financial grounds.
What is perhaps most interesting though is not such polarised comment (which was predictable), but how few people in relative terms bothered to participate in the consultation process by its close on 6 March. Although a seemingly minor change, it is easy to forget that the tribunal was created for the very purpose of allowing free and simple access to justice (something discussed in this column earlier in the year). The introduction of fees is actually a major shift in the rationale of a judicial process at the very heart of UK employment law. Yet only 140 organisations in total (mainly unions and businesses) bothered to respond.
Of these, only 29 responses were actually received from solicitors and legal groups (though admittedly some responses may be a ‘group’ representing several views). While unions and business of course have valid opinions, should it not be solicitors, the bar and other legal groups who are leading the debate on such issues? Surely we should be in the best position to see these matters objectively because we are not personally or philosophically involved. It is we who see the system operate from the vantage of our varied client cases and we who have to work with it on a routine basis. Shouldn’t employment solicitors be the ones most eager to diagnose the sick and to suggest the cure – at least when invited to do so?
Fortunately, we will all have another chance to join in. This time the government’s consultation paper relates to redundancy law. We are now asked for views on a bundle of measures aimed at reforming redundancy, including its consultation rules. The spotlight falls on the 90-day minimum period which must ordinarily pass before larger-scale redundancies can take effect. The proposal is that the present two-tier system either be replaced by one 30-day period for all redundancies where 20 or more employees may be made redundant at the same ‘establishment’; or perhaps that there be a 45-day period when there are 100 or more employees. It is also proposed that there be a new, non-statutory code of practice addressing key issues affecting redundancy consultations with improved government guidance (the current ACAS code presently excludes redundancy dismissals).
Whatever your view, this quietly represents another significant change. If agreed, the reduction in the consultation period before dismissals can take effect would significantly limit the consultation process and, if you believe it to be an effective process at all, reduce the chance that alternatives might be found. It also represents another attempt to tinker with some old employment law fundamentals with the proposed code (exact status unclear) supplementing or perhaps even superseding the base notion of a ‘fair’ redundancy procedure on the merits of the case. With a set of guidelines or rules by which things are judged, are we moving back towards the ill-remembered statutory disciplinary and grievance procedures? Do we have a view? Did you shudder or rejoice? Interestingly some more obvious tweaks will not be dealt with.
A statutory definition of what is an ‘establishment’ (which could come in handy) will not be given. Equally, the government seems intent on ducking the chance to deal with the pithy issues of fixed-term contracts following the difficult decision in the case of University of Stirling v University and College Union (which unexpectedly decided that collective redundancy consultation obligations were not engaged on the expiry and non-renewal of lecturers’ fixed-term contracts). The reason given is that it is felt too difficult to construct a suitable exemption from the legislation for fixed-term contracts. Instead, it proposes to deal with this issue in the code of practice and guidance.
The new non-statutory code of practice will surely give some opportunity for debate. The proposal is that it cover the whole process from when the consultation should start, who should be consulted and what should be discussed. The plan is to include timings and also a view on when the consultation can be considered complete. Would it be wrong to predict that the union view may be that six months would be too short, with industry pushing for a week? Also, what should be done in insolvency situations?
Responses to the consultation are required by 19 September, which leaves almost three weeks for your response. The government has said it will then reply within three months of the consultation closing, with a view to introducing the changes in spring 2013. Then of course there is the great compromise agreement debate. And on it goes. Whatever your view, all employment solicitors will have an opinion. In any sensible debate, as many of these as possible should be heard. Between us we may well be able to find the remedy.
So respond to the consultation. If you do, I will. Or shall we all remain Dr Do Little?