Legal Brief: Are employment law reforms unfair?

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  • Most ET claims settle anyway. It's only a minority (25% on the most recent figures I've seen) that go to court. So it seems to me like the system is working.

    I'm a FRU volunteer and have dealt with claims where the employer acted completely unreasonably and then acted completely unreasonably again in not settling at the first sign of a claim.

    None of my FRU clients have been earning close to the £400 statutory redundancy ceiling for weekly pay. Some would not have been able to file a claim against their employer if they had had to pay anything up front.

    While sometimes ET claims have no legal merit, it's relatively rare for a claim to be wholly frivolous/vexatious. The discrepancy comes when the employee's feelings are hurt or they genuinely feel hard done by, even when the employer has acted wholly within the law. Sometimes just having "their day in court" has value in repairing the ill feelings, even if the employer ultimately prevails.

    Employment law is already so heavily slanted towards the employer. This is just another scare story from the Tories, who are bent on extinguishing as many of the rights of ordinary people as the Lib Dems will let them get away with.

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  • Beth,

    I doubt whether the coalition are bent on extinguishing rights - rather they see the success of businesses as the key to economic recovery. But the employee's (especially the poor ones) will once again have to take one for the team.

    I expect the FRU offices will be bulging with discrimination claims as employee's seek to get round the 2-year rule!

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  • I doubt there will be a big increase before the change comes in. First, most workers don't know their rights.

    Second, the person would have to be dismissed to claim unfair dismissal. So they would need to be dimissed before the new rule comes in but with between one and two years' service. I can't imagine that will apply to too mant people. I guess it's possible that someone could quit and then try to claim unfair dismissal, but it seems like a risky strategy when you could just see if you can cling on to your job long enough to make the two-year threshold.

    Third, there is no minimum period for certain types of unfair dismissal, including dismissal related to pregnancy or maternity, whistleblowing etc. I suspect we will see more people with less than 2 years' service try to claim that their unfair dismissal comes under one of the automatically unfair reasons and therefore there is no minimum qualifying period.

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  • As an employer I find this topic of great interest. The idea that employment rights are already "slanted towards employers" is laughable. Everybody knows how the current system operates...the legal profession earn fees advising employers that tribunals are unpredictable places generally hostile to employers, hence 75% of cases settle outside tribunal.

    Claimants face a path of zero resistance in submitting speculative and dishonest claims, the costs of which all fall onto the employer. The ET almost never award any costs and appear to adopt the position that the plucky employee is taking on the faceless conglomerate who has deep pockets and can afford to waste time and money.

    The part of trade unions is also ignored in the analysis of this topic. Unions generally provide free legal assistance to their members and invariably support a claim regardless of merit. They understand the enormous cost and disruption these cases cause and play the system of settlement outside tribunal.

    As a final observation the employer has a far greater burden of proof placed upon them and must maintain expensive and extensive records...any weakness in which is exploited to present the defendant as a 'bad employer'.
    The claimant basically makes accusations with minimal requirements of proof.

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