From General Secretary Bob Crow

The following changes to Employment Tribunal procedure came into effect on the 6th April 2012.

• From 1st April increases in Statutory Maternity,Paternity,Additional Paternity, Adoption Pay and Maternity Allowance from £128.73 to £135.45 per week.
• Increase in the qualifying period required to bring a claim for Unfair Dismissal or Request a written statement of reasons from 1 to 2 years.

This will apply to all those starting a new job on or after 6th April. Members whose employment started before 6th April 2012 can still bring claims with only 1 year’s service. Therefore someone with 18 months continuous service as at 6th April 2012 will not lose their right to claim unfair dismissal.Equally; someone with only 11months service on that date can still bring a claim for unfair dismissal a month later.

The full impact of this change is unlikely to be clear immediately. However it is anticipated that the increase in the qualifying period will result in an increase of other types of claim which do not require one year’s employment before they may be made, such as Trade Union related dismissals and dismissals for protected disclosure (whistle blowing). In addition it is anticipated that there may be an increase in the number of stand-alone discrimination claims which again do not require any minimum period of employment before they can be issued. The increase in the qualifying period is also likely to have a disparate impact on women, who are arguably more likely to fall short of the 2 years threshold because of interruptions to their careers for pregnancy and child care.

• From 6th April 2012 Employment Judges to sit alone in unfair dismissal cases.

This has been introduced to speed up proceedings as only an adjudicator will be reading the papers. It will make cases much easier to relist when they go part-heard and because it will no longer be nessesary for the panel to reconvene for judgement deliberations. However we see this as potentially detrimental to our members as less experienced employment Judges will be unfamiliar with specific industrial issues, (not all employment judges practised employment law during their careers as lawyers!). Also the removal of our lay members of the Tribunal who have industry-specific and union-specific experience will be a loss to claimants and respondents, it seems that knowledge and experience have been sacrificed in favour of expediency.

• Witness statements to be taken “as read”

Witness statements will no longer be read out by witnesses in claims submitted after the 6th April 2012 except in exceptional circumstances.

This is another so called time saving exercise. However, we are not sure that this will lead to any real time saving because taking a witness through their statement is the way of drawing the tribunal’s attention to the relevant documentation. Therefore if the statements are to be taken as read, the tribunal may require more reading time in order to read them.

• Costs Awards increased.
  

At the moment where a claim or response of any aspect of a claim does not have any reasonable prospects of success, the tribunal may order the party to pay a deposit order this is presently £500, now increased to £1,000.

In addition, the maximum costs that a party may be ordered to pay in respect of the other party’s legal costs where a Tribunal finds, for example that a claim was vexatious, conducted unreasonably or was misconceived, will increase from £10,000 to £20,000. This is likely to be used by respondents to discourage Claimants from pursuing claims which do not have obvious prospects of success. This is however equally applicable to Respondents. We find that tribunals are exercising their discretion to award costs more and more and the importance of ensuring cases are properly set out when they are submitted and ensuring that the issues are clearly identified is now important, therefore legal advice should be sought at the earliest opportunity and not left to the last minute. Members need to be aware that if they insist on pursuing claims which our solicitors have advised do not have reasonable prospects then they may be liable for hefty costs awards.

PROPOSALS FOR REFORM

As a result of Mr Justice Underhill’s Fundamental Review of Employment Tribunal Rules the following proposals are currently being considered and consulted upon:

• Employment tribunal and EAT fees to be introduced

This is highly controversial as the Government is consulting on 2 separate fee- charging schemes and has made it clear that the principle of charging fees in the tribunals and the EAT is not up for discussion. If the Government implements Option 1 fees would be introduced in 2013.

If Option 2 were adopted it would require legislation to be implemented in full which the Government estimates could not be until 2014.

Option 1 would mean fees charged when the claim is issued (an “issue fee”) likely to range from £150 to £250 depending on the case so for example £150 for a simple wages act claim to £250 for a discrimination claim. Then a “hearing fee” of £1250 when the case is allocated a hearing date.

Option 2 would involve one main charging point at the point of issue of claims only but an extra fee for any claimants seeking an award in excess of £30,000 in addition to the claims for the levels mentioned above.

• Compensated no fault dismissal

It is proposed that dismissal should not be deemed to be unfair if no particular reason is specified but notice periods and termination payments are the same as those that would apply in the case of redundancy.

Unfair dismissal is a UK concept and not derived from any EU law so there would be no legal barriers to introducing such a provision, this would remove an employee’s right not to be unfairly dismissed as long as they are given notice and a payment equivalent to redundancy.

Needless to say this proposal is extremely popular with employers and vigorously opposed by this Union.

• Protected conversations

These conversations would allow employers or employees to initiate a conversation about an employment issue at any time as a way of resolving the matter without fear that it could be disclosed to the Employment Tribunal in the course of any proceedings brought later. There are many problems with this concept one of which is that this system may be abused by an employer to mask activities which would otherwise constitute unlawful discrimination. It also isn’t clear what would happen to an employee who refused to take part in a conversation nor is it clear whether the employee would be allowed to be accompanied during the discussion.

This Union will be vigorously campaigning against these proposals and standing up for workers rights.