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2013: All Change Please. All Change?

Meredith Hurst Tuesday, February 5, 2013

2013 is set to be a year for change, or are we taking a step back in time? Employment law is like fashion and like fashion, things come and go. Hairstyles change, skirt get shorter, then longer and then shorter again. Those embarrassing trousers that you've hidden at the back of the wardrobe are suddenly all the rage. A case in point last year was the reintroduction of the two year qualifying period for unfair dismissal after a 12 year hiatus. We go back further in time in 2013 which provides a round of legislative changes that would not look out of place in the landscape of 1940's post-war austerity. Some might say tough measures for tough times; tough economic times that is.

The so called 'Red tape Challenge' launched in April 2011 was a rallying call to all those supporters of the deregulation of employment law. This wide-ranging project set out to review 21,000 pieces of legislation to identify which could be scrapped, merged, simplified or improved. In other words it threatened a huge shake-up of the existing law. The stated aim of the government is to assist business and aid economic recovery with the introduction of the so-called 'one-in two-out' proposal announced by Michael Fallon Business Minister late last year. From January 2013 every new regulation that imposes a new financial cost on businesses must be offset by reductions in red tape that will save twice those costs. On 17 January 2012 the government also released a reform package and three new consultation papers concerning business transfers, conciliation of employment disputes and employment agencies.

Perhaps one of the most controversial about turns is the proposal to abolish the discrimination questionnaires procedure. This procedure has existed for many years to enable those who consider themselves to be victims of discrimination, to ask wide ranging questions of their employers early on in the litigation process. This can be useful in flushing out evidence of discrimination and the employment tribunal can draw inferences of discrimination from a refusal to reply or, evasive replies. This may be tinkering too far with employees' rights but then the questionnaire procedure does place an additional burden on employers faced with an additional step in litigation.

Termination of employment is on the agenda. TheEnterpriseand Regulatory Reform Bill provides for pre-termination negotiations. For those of us familiar with compromise agreements this is already a familiar part of the employment landscape. The proposal is for compromise agreements to be re-named 'settlement agreements'. You may ask: 'what is the point?' This is more about changing the emphasis, removing the prescriptive and complex wording of agreements and making them a less daunting prospect for employers, concerned about fostering a claims culture. This is no bad thing.

The biggest change that we have not seen before will be the introduction in Summer 2013, of a fees regime in the employment tribunal. The level of the fee will depend on the type of claim. There are two types of claim: Level 1 claims and Level 2 claims. Level 1 claims comprise more straightforward and lower value claims, generally for amounts owing on termination of employment (such as unpaid wages, redundancy payments and notice payments) which are less costly to administer. Level 2 claims compromise all other claims including unfair dismissal, discrimination, equal pay and whistleblowing claims. There will be an issue fee and a further fee when the matter progresses to a hearing payable by the claimant.

We would be interested to hear where you stand on these issues but be quick. By the time you reply things may have changed again…