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The Government is not standing still in its efforts to adapt employment law to today’s commercial realities, but as Tom Flanagan reports, a lack of cohesion between the various initiatives is threatening their efficacy
There is a lot going on at the moment in the UK employment law sector, with a number of simultaneous Government initiatives progressing at different speeds and sometimes overlapping.
These initiatives include the Employment Law Review, a broad-based analysis of potential reform in a range of employment law contexts. The first batch includes collective redundancy, the Transfer of Undertakings (Protection of Employment) Regulations (Tupe) and the possibility of a cap on discrimination damages. The first consultation papers are expected in January and February next year.
A consultation process on the reform of Employment Tribunals was concluded in May, but the results and proposals have not yet been published. They are expected later this month and the Government has meanwhile published firm proposals for reform in some key areas.
The Government has also published the draft Beecroft Report on the possibility of no-fault liability for non-discriminatory dismissals. This is possibly an alternative to the Government’s own preferred outcomes of the Employment Tribunal review consultation process - including replacing high-profile announcements - made only a month ago about tribunal and unfair dismissal reform.
Other projects include the Modern Workplaces Consultation, focusing largely on discrimination and diversity, and the Red Tape Challenge, an invitation to businesses to share concerns about less significant but limiting restrictions on growth.
Possible reform of trade union law, particularly in relation to industrial action ballots, is also on the table. This was brought into sharp relief by the Unison ballot on the 30 November so-called Day of Action over the reform of public sector pensions.
Some consultations are now short and general - for example, consultation on the Red Tape Challenge lasted only a few weeks and could well be too vague to be particularly effective.
Some announcements of change are being made about issues that are still subject to consultation, such as the proposed increase to two years in the qualification period for bringing unfair dismissal claims and charging to commence Employment Tribunal cases.
At the beginning of October - perhaps not coincidentally during the Conservative Party conference - Chancellor of the Exchequer George Osborne appeared to commit to those changes taking place in April 2012 and April 2013 respectively, despite the fact they are part of a consultation process that has not yet reported back. Perhaps we will yet hear that those announcements were strong indications of intent, not decisions.
A number of the Government’s aims were set out clearly in the consultation paper on tribunal reform. The Government wants to create jobs and growth, deal with employment issues in the workplace, encourage early conciliation and mediation, and find a simpler, fairer, more understandable and cost-effective process when litigation becomes necessary. It also wants to weed out clearly unmeritorious claims.
As a way of achieving most of those aims there is a lot to be said for a system of no-fault liability for dismissals other than discrimination. It is unfortunate, therefore, that the Beecroft Report on this subject was somewhat hijacked by the frame of reference apparently being to make it easier to dismiss unproductive employees. If that really is the premise of the suggestions then the draft report probably received the reaction it deserved. The general idea, however, is workable and deserves more measured consideration, with some practical adjustments and a more palatable purpose.
Further consultation is planned in the New Year on some aspects of the Employment Law Review, particularly collective redundancy and Tupe. Redundancy is likely to focus on a single, short consultation period, to replace the 30- to 90-day current structure; more guidance on when consultation starts and ends; when notice can be given and end; and the overlap between collective and individual consultation.
The Tupe exercise is likely to address issues such as whether we need a separate category of transaction for change of service provider, post-transfer change or harmonisation of terms and transfers offshore.
In relation to informing and consulting, both consultations might tackle the thorny issues arising out of the situation whereby there is a redundancy exercise as part of a transfer, where there will be two connected but distinct obligations to inform and consult.
Meanwhile, any Unison strike is likely to revive interest in reforming the law on strike ballots, at least in the context of whether there should be minimum requirements for a ballot to authorise action.
The turnout for the Unison ballot was around 29 per cent. Although 78 per cent voted in favour, that meant that only around 22.5 per cent of those able to vote voted for action. Some have suggested that at least 40 per cent of a union’s members should be in favour of industrial action. That would have meant that the Unison result was insufficient. There must be an argument that business - and the country - should not be brought to a standstill by a minority vote.
The Government has strong and positive messages for business and growth, and all these initiatives are designed to advance those messages. However, businesses and employees need clarity and consistency, whereas they seem to be getting something of a patchwork quilt.
What is needed urgently is someone to take an overview - to pull together and make sense of what seems to be a growing number of disconnected, albeit well-meaning, initiatives.
Tom Flanagan is head of employment at Irwin Mitchell