1. The Sack Race? – Forthcoming
employment law reforms
Peter Stevens, Nicola Brown & Anna Rabone

2. Employment Tribunal Claims
• Year to 31 March 2011
• 218,100 cases
• 382,400 claims

3. Employment Tribunal Claim
March to September 2011
• 40,300 cases
• 30% reduction on 2010

4. Employment Tribunal Claims
• Of 382,400 claims:
47,900 Unfair dismissal
+ 16,000 Redundancy pay
930 Reason for dismissal
64,830
• 317,570 – no qualification period

5. Unfair Dismissal
Increase in qualification period
• 1 to 2 years
• 6 April 2012
• Reduce claims by 3,700 to 4,700 per year

6. Transitional Provisions
• Only apply to employees who start on or
after 6 April 2012

7. Unfair Dismissal
• Encourage recruitment
• Rules are barrier to recruitment

8. Unfair Dismissal
• 6 month qualification period (1970s)
• 2 year qualification period (1980s)
• 1 year qualification period (2000s)
• No evidence of impact on recruitment

9. Unfair Dismissal
• Increase in discrimination claims
• R (Seymour-Smith) v S of S for
Employment (2000) HL
• Age discrimination

10. Fines and Fees
Nicola Brown

11. Introduction of fines (1)
• „Financial penalties‟ for employers
• 50% of award made
• minimum £100
• maximum £5,000
• Payable to the Exchequer
• Early payment discount
• In addition to uplift under ACAS Code

12. Introduction of fines (2)
• Consultation responses - concerns about
“unintended or accidental shortcomings”
• Judges will have discretion to impose the
financial penalty

13. Deposit orders and costs
• “Address business concerns about weak
claims”
• Deposit orders – cap increasing from £500
to £1,000
• Cap on costs to increase from £10,000 to
£20,000

14. Introduction of fees
• Employment Tribunals are currently 100%
funded by taxpayers - annual cost £84
million, average £1,800 per case
• Transfer the burden on to those who use
the system or who cause the system to be
used
• Currently consulting about reform – closes
6 March 2012, changes coming in 2013/4?

15. Proposal One
• Level 1 – wages, notice, redundancy etc
• Level 2 – unfair dismissal
• Level 3 – discrimination, equal
pay, whistleblowing
• Issue fee = £150 - £250
• Hearing fee = £250 - £1,250
• Other fees, e.g. Dismissal fee = £60
(payable by Respondent)

16. Proposal Two
• Single charging point
• Fee = £200 - £600
• For claims of £30,000 or more = £1,750
• How should claims be valued?

17. Fees
• Paid by the other party if you win (unless
Tribunal orders otherwise) – but what is a
win?
• Separate fees for multiple claims
• No infrastructure in the Employment
Tribunals

18. The remission system
• Tim – claims unfairly made redundant, has
since secured another job at a lower salary.
His wife works part time earning £6,000
and they have 3 children
• Entitled to full remission if the couple‟s
income is £26,790 or less
• Get the claim in before you get a new job!

19. Protected Conversations
Anna Rabone

20. Protected Conversations
• David Cameron - “so a boss and an
employee feel able to sit down together
and have a frank conversation – at either‟s
request”.
• Will not be admissible in proceedings.

21. Protected Conversations
• Nick Clegg - “confidence to be open about
performance, about retirement with their
employees”.
• At consultation stage.

22. Protected Conversations
• Issues:
• Elements that are not protected
(discrimination).
• Refusal to engage in protected
conversations.
• Systems already in place.

23. Protected Conversations
• Advantages
– Address issues more directly
– No fear of reprisal
• Disadvantages
– False sense of security
– Will not cover all scenarios
– More complex legislation or guidance for
employers to grapple with

24. Other Reforms
Peter Stevens

25. Other Reforms
• Employment Tribunal lay members
• Witness statements taken as read
• Schedule of loss from outset

26. Other Reforms
• The role of ACAS
• Early Conciliation

27. Other Reforms
• Rapid resolution of simple claims
• Regional mediation networks

28. Other Reforms
• Increase in statutory caps
• Basic award - £400 to £430
• Compensatory award - £68,400 to £72,300

29. Other Reforms
• TUPE Service Provision Changes
• Collective Redundancy Consultation

30. Other Reforms
• Compromise Agreements
• Equality Act s 147
• independent adviser may not be a party
to the contract or a person acting for a
party to the contract
• anomaly being addressed

31. And Finally
• Compromise Agreements (ERA 1996)
• Qualifying Compromise Contracts (Equality
Act 2010)
• Settlement Agreements

32. Any Questions?