Changes to Employment Law Rights Announced by the Government

Discussion in 'Finance, Property, Law' started by Iolis, Oct 3, 2011.

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  1. George Osborne has announced changes to employment law. A report in today’s Evening Standard reports him as stating that his intention is to deter what he terms ‘vexatious Industrious Tribunal Claimants’ by imposing a fee of £250 to submit Form ET1 to a tribunal for a hearing and a further fee of £ 1,000 if a hearing is granted. Moreover, the limitation period for unfair dismissal claims is to be raised from 12 months to 24 months.

    This announcement will no doubt be music to the ears of employers who are seeking a more ‘flexible’ (easy to sack and exploit) workforce.

    It is noticeable that the strategy of the government has been to avoid the consequential cost to the public and private sector of vindicating protective legislation by denying access to the courts by the poor and easily exploitable sectors of the population by restricting the legal aid budget. The introduction of Tribunal fees is arguably an extension of this aim by preventing a minimum-waged workforce from vindicating their employment rights by pricing them out of the tribunal system. Although those in receipt of income-support after six weeks of a three month limitation period will no doubt be exempt such charges, those in minimum-waged employment seeking to vindicate, for example, TUPE employment rights for which the maximum amount payable (at the extreme end) for, say, a breach of the information and consultation requirements is 13 weeks pay, it does not take a mathematician to work out the futility of vindicating protective legislation before a tribunal for which costs are not generally awarded.

    Since most employment legislation in the United Kingdom is derived from EU secondary legislation, it is anticipated that a legal challenge by way of application to the ECJ for a preliminary ruling or additionally, or in the alternative, a complaint to the European Commission on the basis that the United Kingdom is seeking to undermine and destroy the reality of EU based employment rights by making it excessively difficult or impossible to vindicate them before a national tribunal may eventually force the government to modify or abandon its proposals.
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  2. ...a change which is long overdue and absolutely necessary. Do you really believe that employers get rid of good employees on a whim?

    They do, however, need the freedom to get rid of poor or mediocre employees without undue process. It's a win-win situation. Cost and time reduced for the employer. Chances of poor employee getting another job very good as employer can sack he/she if under-performing.
  3. The announcement said poor people won't have to pay it. With that in mind, and assuming the threshold for contributions is fair, I agree with the change. You do get a lot of people making speculative applications to ETs - often whilst they're still working for their employer (i.e. nothing to do with dismissal).

    However the signal is that they want to make it easier for employers to exploit and sack people.
  4. The reasoning of the Government is not convincing. In fact, it is pretty spurious. Tribunals regularly weed out unmeritorious claims at the pre-hearing conference stage. Moreover, in respect of cases which only become apparent when they reach the tribunal stage, the speculative or vexatious applicant is generally punished with a costs order.
  5. It is difficult to see how much easier it will be for employers to divest themselves of unsuitable employees under an extended limitation period than it is to effectuate their removal under the current limitation period. If a company, even a small business has in place a set of employment policies and a contract of employment in place then what, if any benefit does it claim to need by an extended period? Are the perceived impediments that bind at the end of 12 months vanish at the end of 24 months? Or is the real reason that the employer is able to exploit the job insecurity of the employee for rather longer than he is able to do so at the moment and has won this extended period by a somewhat disingenuous claim that ‘getting rid of people’ is all too difficult!?

    BBC Panorama has exposed some of the worst aspects of the reality of exploitative employment practices in the United Kingdom. These include attempts to avoid PAYE, holiday entitlement and the avoidance of the minimum wage, while others include unpaid internships and other ‘sharp’ employment practice and widespread avoidance of the minimum wage.

    It is difficult to see why the minimum wage should be regarded by some employers with such hostility. Prosecutions under it are virtually unknown. Although the claim for its existence is said to prevent vulnerable employees falling into poverty, its actual aim is to set a base level at which wages may be driven down to a level set just above that which the taxpayer has to step in to provide benefit assistance. The UK Tax Authority calculate that 23,000 people are owed over £4,000,0000.

    In seeking to draw attention to the abuse of the easily exploitable low paid, it has sought to highlight the way in which some employers currently evade their liability for UK tax. The two principle methods include manipulating the employment status of ‘worker and the widespread use of unpaid ‘internships’.

    Describing someone as ‘self-employed’ in an attempt to deny the existence of the employment relationship is quite common in the service sector. Many taxi companies, for example, assert that their drivers are self-employed. In this way, the company enjoys the benefits of an employment relationship and the profits derived therefrom while avoiding the burden of accompanying employment rights. A similar relationship obtains in the widespread use of unpaid ‘internships’ which are quite common in the professional sector employing graduates such as the law and Politics. Here, the employer receives unpaid work from a general factotum in return for the ‘experience’ it confers.

    What Panorama omits to mention is the recent decision of the Supreme Court in Autoclenz Ltd v Belcher [2011] UKSC 41 which effectively puts an end to the practice of the sham ‘self-employed’ and jeapordises the continued existence of internships. It is a decision that will undoubtedly be prayed in aid of by the HMRC to claw back what is owed to the Treasury as well as confirming the existence of a remedy exercisable by those whose labour has been unfairly exploited. The judgement is linked and there is no need to recount it in detail here, other than to say that the court will look at the reality of the employment relationship rather than the form it takes in deciding whether or not an individual is an employee for the benefit of the protective legislation to which they are entitled among which includes the minimum wage and paid holidays.

    Given that unpaid internees are widely employed as political researchers and assistants in constituency offices up and down the Kingdom which may or may not feature as a claim on MPs expenses, the Autoclenz case must come as something of an inconvenience for the government seeking a review of employment law in the United Kingdom with the limited scope the government has for the widespread destruction of EU-based employment rights.

    John Major’s government at least benefited from its ‘Opt-out’ after Maastricht of the ‘social Chapter’ which conferred them on workers in the EU. This is why under the last Conservative Government, there was no such thing as statutory holidays, and employers were able to sack pregnant workers etc but at least the economy recovered faster than it would otherwise had done. The Labour Government ‘Opted-In’ in 1997 and now the government are stuck with Treaty-based employment rights, unable to change them unless they leave the EU which is never going to happen but at least it gives a clearer indication as to the motives of the government in shaping policy in the area of employment law.

    Although the Government can do little about substantive employment rights, it can make them difficult to vindicate by those at the bottom end of the exploitation scale – thus we have the ‘fiction’ of ‘frivolous’ and ‘speculative’ claims as a justification to impose tribunal fees which I very much doubt any of those in the Panorama Programme could actually find in order to exercise the privilege of walking through the doors of a tribunal!
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  6. If they haven't got any money, the firm they are trying to **** over isn't going to get anything back for their costs.

  7. What a ****
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  8. You mean the firm from which they are attempting to obtain a redress?

    Those who bring ET1 claims before Employment tribunals meet their own own costs. They do not obtain their costs from the losing side. The only time a tribunal will award an employer his costs is where the applicant has brought a frivolous or vexatious claim. Thus, at the moment, the little cleaning lady who'se employer has lost the contract against another cleaning company who then wishes to change her terms and conditions of employment or sack her despite TUPE 2006 has to fill in her own ET1, submit it to a tribunal and if she wins, she is awarded a remedy which does not include her costs. If she hires a lawyer to attend with her, she meets his costs out of whatever she is awarded if she can hire a lawyer at all or find one willing to work for a fee which is less than the 'capped' award potentially available to her. An employer who attends himself to defend his claim, if he bothers to attend at all, will not recover any costs if he wins, provided the claim brought by Mrs Mopp is well founded.

    Employment tribunals were set up for the purpose of providing an informal means of resolving employment disputes without the requirement for lawyers which are, in any event, well beyond the means of those in low-paid employment. It is generally the employer who has deep pockets and with the means to hire lawyers or is able to use the in-house lawyers or legally trained HR Staff. Employment tribunals are hardly places in which there is an 'equality of arms' between the parties in dispute and the employee has to surmount a considerable number of hurdles before his case is considered justiciable in them.

    What I do find deplorable about the Government is the downright dishonesty it uses to dress up its little acts of meanness to 'chip away' piece by piece, at rights which might conceivably come to the aid of the little person with non-one else to speak up for him. Governments seem to think that they are elected to advance the exclusive interests of those who are already well-able to take care of themselves!

    Edited to add hyperlink
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  9. Even better then, why should the employer be out of pocket just because someone makes a claim that is not upheld?
  10. An employer will be out of pocket if a claim is not upheld but will not be out of pocket if the claim is found to be frivolous or vexatious and the tribunal exercises its discretion to award him his costs - as the Black Police Constable who played the 'race' card once too often in his claim against British Transport Police found out to his cost - £2500 costs to be exact!

    Such examples expose the 'fiction' of the government's justification and rather undermine its case for the introduction of tribunal fees!
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  11. If its not upheld he's out of pocket.
    If its not upheld but frivolous or vexatious as you say and we will use your example of Mrs Mopp how does the employer get his money if the claimant has none?

    You don't seem to be outraged the employer seems to be taking it in the shorts.
    One might go as far as to say that some employers will make a payment to stop proceedings because its cheaper for them even if the claim is not uphled.
  12. If a tribunal awards a costs order against an individual, the creditor recovers his money in exactly the same way as any other civil debt. PC Plod above, assuming he keeps his job with British Transport Police will face exactly the same problem. Employers who abuse the power relationship against those they consider to be unintelligent, inarticulate and unsophisticated and no serious threat to them can be expected to 'take it in the shorts'. If they decide to settle with the employee for a derisory amount of money because it is cheaper than the costs involved in attempting to defend the indefensible, it is generally because they 'got it wrong' and were caught by surprise when the individual they had written off as 'insignificant' had the bare-faced temerity to submit an ET1.
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  13. Lets not talk about Plod let talk about your original Mrs Mopp. How does she pay up?

    I'm pretty sure I've just said the employer might pay up because its cheaper than waiting to be told the claim isnt upheld. Nothing to do with employers who abuse their power.

    It doesnt seem to bother you in the slightest that employers who have done nothing wrong have to pay costs if the claim isnt up held. Unless the claim isnt upheld and is also frivolous or vexatious in which case they then have go through the bollocks of recovering the debt and if its Mrs Mopp who isnt working, find out they will get nothing.
  14. Here we go again! Stacker, grow up, **** off and troll somewhere else!
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  15. **** you and answer the question, you are full of it when you go on about the down trodden workers, you never seem to answer questions about the small business man being fucked over by his ex employees do you?