The year ahead: Upcoming changes in employment law

Those who entered new employment on or after 6 April 2012 and those who started Employment Tribunal claims on or after 6 April 2012 will be affected by some reforms in employment law.

Unfair dismissal qualifying period: increase from one to two years

New employees (i.e. employed on or after 6 April 2012) will need to wait two years, rather than one, before attaining the right to bring a claim for unfair dismissal. 

Good news for employers on the face of it; however, the right to bring claims for alleged discrimination remain day one rights. 

The likely outcome is that the overall number of Tribunal claims will drop slightly, but that more employees will try to bring claims of discrimination.

With an increased number of Protected Characteristics and the implementation of the right to claim discrimination by association, most employees would now be able to shoe-horn their way into a claim of discrimination if they really tried.  Once settled under a Protected Characteristic, the employee could bring a claim that they were dismissed because of that Protected Characteristic right from the start of their employment.  If they cannot squeeze in under a Protected Characteristic, then they could fall back on whistle-blowing, another day one right.

Whilst these claims may be completely without merit, they can be costly and complex to defend which may, ultimately, undermine the Government’s attempts to reduce the litigation burden on employers.

Tribunal changes

In addition to increasing the qualification period for bringing a Tribunal claim for unfair dismissal, the Government has also implemented a number of measures designed to reduce the number of claims which are submitted without real prospects of success.  These changes will only affect claims presented on or after 6 April 2012.

Cost awards: the maximum cost award that an Employment Tribunal may make has increased from £10,000 to £20,000.  Whilst cost awards in Employment Tribunals remain the exception, rather than the rule, the increased potential liability could make vexatious litigants think twice before submitting their claim.

Deposit orders: Employment Tribunals will be able to order Claimants, who bring claims with little prospects of success, to pay a deposit to the Tribunal of up to £1,000 which would normally be sacrificed if they are unsuccessful in their claim.

Witness statements: witnesses will no longer have to read their witness statements out to the Employment Tribunal, instead their statements will be taken as read (already the practice in some Tribunals).  This should reduce the time taken for a hearing to be completed and, ultimately, reduce the costs to the parties.

These changes are definitely a step in the right direction.  Whilst the increase in qualifying period for bringing a claim for unfair dismissal is unlikely to have a significant impact on the number of claims brought, the increase in cost and deposit orders allowed adds to the employer’s shield against vexatious claimants.