Employment lawyers are more in-demand than ever as they guide their clients through a stack of new legislation from age discrimination to tupe...

If there is one thing that unites lawyers acting for employers and employees, it is a dislike of the current tribunal rules. Indeed, when the Employment Lawyers Association (ELA) recently surveyed its members on the rules, the response rate was 'phenomenal', and the dissatisfaction was stark.


The employment tribunal rules, and the rules governing statutory grievance procedures, were launched with a fanfare by the government in October 2004. But the survey revealed last month that more than 90% of solicitors think the dismissal procedure set out in the rules has actually proved more costly in time and money for their clients, while 71% said the grievance procedure had made no difference to the number of claims being resolved early (see [2006] Gazette, 1 June, 4).


Some 81% complained that it was unfair to employees that they could be prevented from bringing a claim because they had not filled in the right form correctly, and two-thirds said it was harsh on employers that they could be unable to defend claims for the same bureaucratic reason.


These lawyers' voices will not go unheard. The Department of Trade and Industry (DTI) has asked for a meeting with the ELA at the start of its promised review of the employment tribunal rules of procedure, to hear its members' concerns. Richard Fox, a partner at City firm Kingsley Napley and chairman of the ELA's tribunal monitoring working party, admits: 'We hadn't anticipated the extent to which practitioners were dissatisfied.'


One idea that sounded good in theory, he says, was to set fixed periods for conciliation to stop claims settling at the door of the tribunal. But they are too soon in the process, he argues. 'They don't work because clients won't settle claims until they know the strength of the case they are facing. The mind gets wonderfully concentrated just before you go in the witness box, and you can't recreate that sweaty-palm feeling at an earlier stage.'


For Karen Seward, an employment partner at magic circle firm Allen & Overy, the requirement that employees raise their grievance in writing - and then wait 28 days before going to a tribunal - has led to some cases being resolved. 'But what it is doing is leading to a "lawyerisation" of the internal grievance process, which, on balance, is probably regrettable. Employees put in their grievance like a dummy run, so, for the employer, it becomes like a dummy run of their defence. It ends up with lawyers heavily involved advising on internal grievances, which wasn't what was intended.'


She also points out that under the statutory grievance process, employers must deal with the matter through a three-step process. 'But the tribunals are saying that pretty much anything can constitute a statutory grievance. If someone is unhappy with their bonus and sends a one-line e-mail complaining to someone, inadvertently they have raised a statutory grievance, and if an employer doesn't investigate they face a 10-50% uplift in any subsequent compensation.'


John McMullen, head of employment at Watson Burton in Leeds and a member of the Law Society's employment law committee, says the new rules are 'off-putting' - both legally and procedurally - for employees, and raise a big question about access to justice. They are also extremely complex for employers. 'My take is there will be submissions from all sides of industry to the DTI's review process.'


The tribunal rules are also unpopular with trade unions. According to Stephen Cavalier, a partner at Thompsons in London, the unions - which form the bulk of his client base - have found the rules 'unduly complex', with many deterred from making claims, or with cases getting clogged up on procedural points.


Antonia Holmes, a solicitor in City firm Lovells' employment team, says that 'on the plus side, the case management rules mean tribunal chairmen are taking a more proactive approach, so cases aren't left to flounder. The real bugbear is about getting your claim in or responding to a claim, as tribunals have been very harsh in what they will accept'.


Whether or not practitioners' views will lead to significant changes in the rules remains to be seen. However, the tribunal rules are just part of a welter of new legislation and case law that overwhelms employment law practice. Top of the agenda are age discrimination, which comes into force this October, new TUPE (the Transfer of Undertakings (Protection of Employment) Regulations 2005) rules, which replace the ageing 1981 regulations, and the Work and Families Act 2006.


At the same time, existing legislation is throwing up unintended consequences, says Ms Seward. 'The Public Interest Disclosure Act 1998 says an employee is protected if they blow the whistle about a breach of a legal obligation. The courts have said that means any legal obligation, which includes a breach of an employment contract - something I don't think Parliament intended.'


So, if an employee accuses his company of failing to pay his £1 million bonus and says it is a breach of a legal obligation and the company fires him as a troublemaker, he can claim he has made a whistle-blowing disclosure - and the normal statutory cap on unfair dismissal of £56,000 does not apply. 'Anyone with a bit of foresight can get themselves within those provisions,' she says.


One positive aspect of the legislative onslaught is that employment lawyers are more in demand than ever - with employers hungry for seminars on age discrimination in particular. The government's regulatory impact assessment predicts the new law could lead to 8,000 claims annually.


Mr McMullen agrees that it is likely to have a huge impact because, unlike the US - where the legislation only protects people over 40 - the UK's legislation will affect all ages, young and old.


ELA chairman Barry Clarke, head of Russell Jones & Walker's Cardiff employment department, predicts that the new law will be 'all about striking a balance'. He says: 'It is not yet clear what impact it will have, as it can take a while for people to appreciate their rights.'


Matthew Brain, a partner in Irwin Mitchell's Leeds employment group, says his employer client base is 'fairly relaxed' about the prospect of age discrimination laws. 'Having gone through [legislation prohibiting discrimination on grounds of] disability, sexual orientation and religion over the last few years, they take the view that if they treat everyone fairly, they shouldn't come a cropper.'


Ms Seward says that while lawyers are 'talking it up', employers seem to be waiting to see what everyone else will do first. But she observes: 'It will be especially challenging for employers because it is a culturally acceptable form of discrimination. People make ageist jokes all the time.'


While some practitioners 'glaze over' when new TUPE is mentioned, Ms Holmes thinks that it has clarified issues from an employment perspective - 'though it has left insolvency practitioners with their heads in their hands, saying that it isn't going to clarify things at all'.


For Mr Cavalier, the other big issues are equal pay - which may lead to litigation in both the health service and possibly local government because of public sector equal pay claims - and progression on the Warwick Agreement between the government and trade unions before the last election on the right to paid bank holidays and the proper implementation of the Temporary Agency Directive.


The new family-friendly policies, which include greater maternity pay, extended paternity leave and the transfer of leave between parents, as well as flexible working for carers of adults, are also likely to prove controversial.


So, while the raft of new legislation is an interesting challenge to practitioners, 'if you are a client, it must be a pain in the neck', says Mr Brain. Ms Seward notes that over the last decade, employment lawyers have gone from dealing with HR managers to boards of directors and general counsel, 'which shows just how far employment issues have gone up the agenda, because a lot of them have real reputational risks and can cost a fortune'.


Mr Clarke says the speed with which employment law changes means a lot of time spent swotting up on legislation and law reports. 'But this is one of the challenges and why we like doing employment law. It is not process driven and we are not conveyancers. We like the fact that the law is always changing because it keeps you on your toes - and it makes us indispensable.'


Grania Langdon-Down is a freelance journalist