THE EMPLOYMENT TRIBUNAL

ANDREW PETERS IS AN EMPLOYMENT SOLICITOR AT LAW FIRM BARLOW ROBBINS LLP. READ ON TO FIND OUT ABOUT THE CHANGES TO THE EMPLOYMENT TRIBUNAL SYSTEM.

Therefore, it will remain to be seen whether new employment will actually be created. It is quite possible that any “new” roles will simply replace those employees who have been dismissed during the first two years of their employment. Employers who do feel at liberty to more freely dismiss will need to carefully consider the additional recruitment costs and disruption of a constantly changing workforce. In addition to the qualifying period the reforms introduce the idea of fees to use the employment tribunal system, which may ultimately result in the total number of claims falling. At the time of writing it is understood that such a system of fees will be introduced in April 2013, although the particular details have yet to be confirmed. Some sources have reported that there will be an issue fee of £250 and a listing fee of £1,000, with even higher fees if the compensation claimed exceeds £30,000.
The introduction of fees might well be better news for employers than the extension of the qualifying period. There is undoubtedly a significant number of claims pursued by employees that are entirely without merit and which have been brought for their nuisance value.
Some employees will represent themselves in such claims in the knowledge that their employers will incur legal costs, will suffer a significant disruption to their business in the defence of such claims and therefore, will offer to settle the claim at an early stage regardless of the strength of the claim.
The introduction of an issue fee might well weed out such unscrupulous employees, who for the first time will face paying for pursuing a claim and forfeiting such monies if they are unsuccessful.
be able to pursue such a claim. However, it is highly likely that the anticipated fall in unfair dismissal claims will be met with an increase in the number of discrimination claims. Therefore, the reforms may not actually offer much relief to employers.
Employees can pursue a claim for discrimination from the first day of their employment, as there is no qualifying period for such
claims. There currently exists a wide-reaching collection of laws prohibiting discrimination on the grounds of age, disability, gender reassignment, marriage and civil partnership, pregnancy and maternity, race, religion or belief, sex and sexual orientation.
Over the last ten years or so there has been a significant increase in the number of discrimination claims. It is fair to say that some of those discrimination claims will have been brought by employees who have not yet reached the qualifying period for unfair dismissal. With the qualifying period increasing, it is almost certain that the number of discrimination claims will similarly increase. Employers might simply be defending a different type to claim in the future, rather than removing themselves from the tribunal system altogether. Therefore, the impact of the increase to the qualifying period may well be minimal in terms of the total number of tribunal claims in the system.
From the comments of Mr Osborne and the Business Secretary Vince Cable, one of the purported justifications for these reforms is the notion that employers will find it far more attractive to recruit and therefore, jobs will be created. However, employers must be careful not to take the view that they can simply dismiss with impunity in the first two years of employment without any recourse. Any employer dismissing in the future should still carefully consider all the issues relating to the potential dismissal of an employee in an effort to minimise the risk of a discrimination claim.
Any employer that has been unfortunate enough to be involved in a discrimination claim will know that such claims often take a significant amount of time and cost to resolve – often more than an unfair dismissal claim. Such employers will almost certainly remain weary of recruiting or dismissing an employee even after the reforms.
Early this year the Government launched a consultation on proposed reforms to the employment tribunal system. Two of the eye-catching proposals mentioned at that time were an increase to the qualifying period for unfair dismissal (currently one year) and the introduction of an issue fee (individuals currently being able to issue a claim completely free of charge). In his speech at the Conservative Party conference on 3rd October 2011, George Osborne finally confirmed that the qualifying period for unfair dismissal will increase to two years and confirmed that parties would have to start paying to use the employment tribunal system.
Following Mr Osborne’s announcement, a BIS press release confirmed that the qualifying period will increase from 6 April 2012. However, no further detail has yet been provided. With this in mind, careful thought will need to be given as to how employers deal with those employees who have already attained one year’s employment, although not yet two years, come 6 April 2012. Perhaps the simplest way to deal with this issue is for those employees who already have attained unfair dismissal rights (that is, have at least one years continuous employment at 6 April 2012) to retain those rights? However, the consequence of such an approach would be that it would take longer for the reforms to have any real impact.
Increasing the qualifying period for unfair dismissal from one year to two years turns back the clock to the law as it existed prior to March 1999, when the qualifying period was reduced to one year. It is worth noting that the qualifying period was reduced to one year following a claim for indirect sex discrimination and a decision that the two- year qualifying period was potentially indirectly discriminatory against women as they often have shorter periods of employment compared to their male colleagues. It remains to be seen whether the proposed reforms will face a similar challenge for indirect sex discrimination some 12 years on.
Regardless, in the period April 2010 to March 2011 some 47,900 claims for unfair dismissal were pursued in the employment tribunal, which accounted for approximately 12% of the total claims during the same period. On the face of it, the reforms will almost certainly result in a decrease in the number of claims for unfair dismissal as fewer employees will