In February we reported that at the end of January the Government published a consultation paper designed to "improve the way in which workplace disputes are resolved" (the consultation period ended on 20 April).
Proposals for a more active role for ACAS in trying to settle claims before they get to a tribunal have been generally welcomed but other proposals have been criticised by experts in the field, not least one to the effect that employment judges should be able to sit alone in unfair dismissal cases. Hopefully the government will listen to the views of the experts this time around. They failed to do so in 2004, when the last serious attempt to improve dispute resolution processes was made. The embarrassing result was that the compulsory procedures then introduced were removed in their entirety just five years later.
It may be helpful, given other current consultations and proposals, to point out that the January 2011 consultation was concerned simply with dispute resolution. It had little to do with the substance of employment law. The separate May 2011 consultation on “Modern Workplaces” (noted in our other posts this month) deals with that.
In addition to these consultations the government made a quite heavy duty employment law announcement on 11 May. This was picked up by various newspapers which provided headlines such as "Coalition to water down employees’ rights"” (The Guardian) and "Sackings to be made easier and payouts cut in war on red tape" (Daily Telegraph). The Unite Union came out with a snappily titled press release saying "Plans to make a bonfire of employment protection policies need to be extinguished".
For avoidance of confusion, it is worth pointing out that this announcement had little or nothing to do with the January and May formal consultations. Also, it turned out to be something of a damp squib. The "action" part of it merely promises a review of three parts of employment law later this year – the parts in question being (i) the absence of a cap on the amount which employment tribunals can award in discrimination cases; (ii) the 90 day consultation period where collective redundancies are proposed; and (iii) TUPE. The first of these took a knock just this week when a proposal to cap discrimination payments at £50,000 was lost due to lack of Parliamentary time
Given that much of the relevant British law is required by EU Directives it seems unlikely that any radical changes will be made. However it may be that official protestations last autumn to the effect that there were then no proposals to change the TUPE regulations are being modified in the light of the Government’s subsequent commitment not to "gold-plate" EU Directives. One area of "gold-plating" is the service provision part of TUPE. While TUPE itself is designed to implement an EU Directive, this part (reg 3(1)(b)) is not. It has, for example, the effect of making it practically impossible for a local education authority to save money by outsourcing provision of school meals to a catering company which offers staff less generous pensions than the LEA.
The road to hell is, of course, paved with good intentions. While employment law may itself be confusing, plans to simplify it can all too easily make things even more confusing. An important message for both employers and employees to take from all this is that while the detail of how the rules apply may be complicated in some cases, it is still true that as a a general rule common sense and fairness will usually win the day in employment law matters.