The employment tribunal system may become impossible for most workers to access

This latest in a series of wide ranging attacks on workers' rights must be resisted

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26/11/2011      By David Greenstein

The government has unveiled a swathe of intended 'reforms' to employment protections. The government describes the measures as the "most radical reform to the employment law system for decades". The work of Thatcher will be extended by way of undermining the unions, worker freedoms and rights. Wherever possible the rights that the European Union has given workers under several Directives and European Court of Justice decisions over the years will be largely circumvented.

Of course this war against workers is euphemistically described as intended for "cutting unnecessary demands on business". A mealy mouthed and misleading rider is added, that the "measures will retain key protections for employees". The main thrust now is to prevent workers from using the tribunal system, the main protection for workers nowadays in the absence of powerful and effective unions able to protect workers' interests. British unions are often seen as being more interested in organising attacks and boycotts of fellow israeli workers rather than in organising an effective defence of British workers against the many pronged attacks from the radical Liberal-Conservative alliance.

No matter how much this radically anti-working class government tries to do away with workers' rights, some comfort can be gained from the fact that until and unless Britain withdraws from the EU, many of the protections for working people such as those enshrined in discrimination law can only be tampered with, not legislated away.

The government has stated that apart from its changes to the tribunal system, it will "fundamentally improve" the way employers take people on, manage disputes and sack workers. The "overhaul of employment tribunals" will hand £40 million a year in "benefits to employers". Benefits are of course acceptable only when used to line the pockets of the rich, the powerful, the bankers and employers.

    The Government's proposals for undermining workers' rights:
  1. Introducing 'protected conversations’ preventing employers discussions with workers from being admissible as evidence in tribunal claims.
  2. Implementing a system of fees to help prevent workers bringing an employment tribunal claim (by way of an initial fee to lodge the claim, then a second fee when it goes to hearing, and if the claim is worth more than the £30,000 threshold it will cost more to bring the claim. The way the fee system is implemented will need to be carefully scrutinised as to its validity under Article 6 of the European Convention on Human Rights (ECHR). As most workers when they are dismissed or are forced to leave their work and then claim constructive unfair dismissal are financially challenged, the government in order to avoid Human Rights challenges will need to make provisions for these claimants.
  3. Introducing 'compensated' no fault dismissal for firms with fewer than 10 employees.
  4. 'Slimming down' dismissal processes whilst leaning on ACAS (Advisory, Conciliation and Arbitration Service) to make relevant changes to their Code.
  5. "Simplifying the employment tribunals system" for businesses (saving £50m a year for businesses).
  6. Where redundancies are envisaged, reducing the 90 day minimum period for companies with over 100 workers.
  7. "simplify" Transfer of Undertakings (Protection of Employment) - TUPE - that are "too complex and bureaucratic" for businesses. Notice that this could similarly be said of TULRCA, but the government has no interest in 'simplifying' this nightmarish legislation).
  8. Close a whistleblowing case law loophole allowing employees to blow the whistle concerning their own personal work contract.
  9. Merge 17 National Minimum Wage regulations "making it easier for employers to navigate the law"(evade?)
  10. 'Streamline' the current regulatory regime for the recruitment sector.
  11. Increase the qualification period for unfair dismissal from one to two years (from April 2012).
  12. Expenses will be withdrawn for witnesses. This will be a potentially enormous obstacle to claimants. It will however be challengeable as a matter of course. Claimants should in any case in case of hardship write to the ET asking for their expenses to be paid, and if this is the case, they should explain that they will otherwise be unable to attend the tribunal. They should remind the ET of its duties under the 'Overriding Objective to do justice, and of Article 6 of the European Convention on Human Rights (ECHR).
  13. Judges are to sit alone for unfair dismissal claims dispensing with the lay input to tribunal decisions. A claimant can feel that a judge is at leat subconsciously more sympathetic to arguments from fellow practitioners of law than an unrepresented claimant, not versed in the procedures and language of law. Judges of course will normally try to deal fairly with claimants, but this dispensing with the lay wing members is another measure that will weigh heavily against a system already heavily biased in favour of employers.
  14. Other Changes not necessarily negatively affecting the claimant's case/not sufficiently clear as to allow WorkRep to make an opinion on the effects of the policy:

    1. Creation of a universally portable CRB check instantly viewable online by employers from early 2013.
    2. Witness statements will be taken as read (From April 2012).
    3. 'Offering' of ACAS pre-claim conciliation before going to an employment tribunal (acceptable as long as this does not become compulsory (as will most likely be the case)
    4. Simplifying of compromise agreements renamed ‘settlement agreements’.
    5. A ‘rapid resolution’ scheme offering a quicker and cheaper alternative an employment tribunal hearing. WorkRep has long called for the employment tribunal system to draw closer to the small claims court system. We have called for an invigilative rather than the present adversarial system that acts mainly to line the pockets of the legal profession, with workers being often left with a mountain of debt, stress and the crumbs when successful. The way this scheme is implemented (if indeed the government is serious about this) will need to be followed.
    6. Under the government's so called "Red Tape Challenge", of 159 regulations over 70 will be "merged, simplified or scrapped".
    7. Modifying the formulae for up-rating employment tribunal awards and statutory redundancy payments to round to the nearest pound. The reduction in redundancy pay and subsequent reduction in associated compensation payments made in employment tribunals will lose workers £5.4. million each year in favour of their employers.
    8. Costs awards against claimants are to rise from £10,000 to £20,000 (at the moment the rise is stated as being only intended for 'vexatious' claimants). Deposit orders for claimants "when a judge determines that a part of claim in unmerited, will rise from £500 to £1,000".

      Since the Employment Law Review announced last summer the Government has:
    • commissioned an 'independent' review jointly with DWP to 'manage' sickness absence
    • repealed the planned extension of the right to request flexible working to parents of 17 year olds
    • decided not to bring forward the dual discrimination provision in the Equality Act
    • not extended the right to request time to train to companies with fewer than 250 staff.

    These so-called 'employment law reforms' make clear the extent of the Lib-Con attack on worker rights. They are fundamental and wide ranging although the focus at the moment is on the weakest link, to prevent workers seeking enforcement of their rights by way of the employment tribunal system.
    The emasculation of the employment tribunal system will bring the Lib-Con alliance and their paymasters in the business world the biggest bang for their buck, the quickest results for the least effort. Any hope that the Liberals might have moderated government measures against the poorer sections of society or against workers, if not dashed already with previous attacks on the NHS, pensions and students, to name just two previous targets of government 'reforms', is now seen as once and for all to be illusory. The Liberal Democrats are every bit as nasty as the conservatives, every bit as interested in rolling back rights and protections for workers in the workplace.
    Such wide ranging attacks on workers' rights in favour of 'suffering' businesses as we are seeing at the moment will continue to be regular fare whilst these two parties hold power. There will be a long and hard struggle ahead to slow down and to mitigate the damage that is being caused to workers and the wider economy.

    1. Vince Cable’s speech
    2. The Calls for Evidence on collective redundancies consultations and TUPE can be found at 1) and 2
    3. The terms of reference for Mr Justice Underhill’s review which will be presented to Ministers next year
Protecting Workers

Some recent employment cases:-
The level of compensatory award for unfair dismissal must be 'grossed up' before the application of the statutory cap. - Hardie Grant London Ltd v Aspden [2011] UKEAT 0242_11_0311
Even where lists of issues have been agreed between the parties they should be scrutinised by employment judges. - Price v Surrey County Council & Anor [2011] UKEAT 0450_10_2710
Female workers suffered indirect sex discrimination in a pension scheme but no loss (and therefore will not receive compensation) - Copple & Ors v Littlewoods Plc & Ors [2011] EWCA Civ 1281
In order to claim holiday pay under Reg 16 (1) of the Working Time Regulations an employee must have already have stated an intention to take it. - Fraser v Southwest London St George’s Mental Health Trust [2011] UKEAT 0456_10_0311
Even where lists of issues have been agreed between the parties they should be scrutinised by employment judges. - Price v Surrey County Council & Anor [2011] UKEAT 0450_10_2710
Claimants with Before the Event Insurance may choose their own solicitor - Brown-Quinn & Anor v Equity Syndicate Managment LTD & Anor [2011] EWHC 2661
The High Court issues guidance as to when contractual provisions are valid - Hussain v Surrey and Sussex Healthcare NHS Trust [2011] EWHC 1670 (QB)
Disciplinary processes must be conducted fairly and without undue delay - Lim v Royal Wolverhampton Hospitals NHS Trust [2011] EWHC 2178 (QB)
An employer's reasonable (but wrong) belief that a worker is working illegally is no defence to an illegal deduction from wages claim - Okuoimose v City Facilities Management (UK) Ltd [2011] UKEAT 0192_11_1309
Whistleblowers are not protected against victimisation by fellow workers - NHS Manchester v Fecitt & Ors [2011] EWCA Civ 1190
An employee sharing profits in the firm is not necessarily a partner - Williamson & Soden Solicitors v Briars EAT [2011] UKEAT/2011/0065_10_2705
Leaving a page out of the reasons for an EAT appeal was venial - Hine & Anor (t/a Hine Marketing Partnership) v Talbot & Ors [2011] UKEAT 1783_10_2706
In Equal Pay claims after a TUPE transfer, red circling will be accepted as constituting a genuine material factor defence - Scotland Co Ltd v Buchanan & Anor (Equal Pay Act : Material factor defence and justification) [2011] UKEAT 0042_10_2505
If you have a problem at work over harassment, disability, sex, age, race discrimination or bullying or are seeking compensation or reinstatement for unfair or constructive dismissal then contact workrep for an evaluation of your case. We can also advise you on equal pay, TUPE or employment status. Often an employee will come to us over a breach of contract by their employer or for issues concerning whistleblowing. If your employer has made you redundant you might in fact have been unfairly dismissed or wrongfully dismissed. If you have any other employment issues don't hesitate to contact WorkRep.
You do not need to accept being discriminated against harassed or victimised at work. If you are suffering from bullying victimisation or discrimination at work you need to contact WorkRep early on. Whatever your employment problem is, even if you have failed in your tribunal case and there is now a costs application against you we will try to help. click for further information about problems at work

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