In the last week or so, the Government has done a number of things that are rather surprising to employers used to a succession of new burdens being imposed on them by Governments.
Last week, they issued an “Employer’s Charter” designed to dispel some myths about employment law and reassure employers that they have some employment law rights, too. At the same time they also issued a consultation, “Resolving workplace disputes”, that, amongst other things, proposes increasing qualification periods for unfair dismissal from one to two years. This week they have responded to business criticism of the forthcoming Bribery Act and delayed its implementation so that it will no longer come into force at the beginning of April.
It would be churlish to criticise the Government, given these clear indications that they are actually listening to employers and concerned about regulatory burdens on business. But, hey, I’m a churl!
Take the “Employer’s Charter” (http://bit.ly/gEbnLm): well-meaning, yes; but helpful? Not really. The charter is a list of 11 bullet points setting out alleged employers’ rights. Pity the poor civil servant who had to trawl through employment law looking for something positive they could say to employers!
The first one tells you that you can “ask an employee to take their annual leave at a time that suits your business”. Sorry to sound like an employment lawyer but, yes, you can ask but whether you can actually require depends on what the employee’s contract of employment says (if anything). Again, the Charter says you can “ask an employee to take a pay cut”. Very helpful! What if they say “no thanks”? You can’t unilaterally impose a pay cut – at least not without your employees being able to sue you. You can, says the Charter, talk to your employees about their performance and how they can improve and you can dismiss them for poor performance. Surely there weren’t any employers who were ignorant of this? The question though is how you dismiss without giving the employee a pop at an employment tribunal claim against you. So, more publicity stunt than useful guide, I fear.
How about the “Resolving workplace disputes” consultation (http://bit.ly/h4rJSR)? This is actually full of good ideas to reduce the number of unmeritorious tribunal claims, such as increasing the power to strike out claims and to award costs against claimants. There are also some ideas that will be controversial, even amongst employers, such as dramatically reducing the role of lay members, representing employers and employees, and boosting the role of the lawyer judge in the tribunal system. There is one idea, however, tucked away in the consultation, that employers are likely to be incensed over. The Government is planning to impose financial penalties on top of any compensation awarded against an employer by the tribunal. So, if the employer lost the claim, the tribunal would award the claimant a sum by way of compensation, payable by the employer, and a penalty of half of that sum to be paid by the employer to the Government (with a maximum penalty of £5000). (If the penalty is paid within 3 weeks, it will be cut in half). The aim of this plan is surely to increase the risk to employers of fighting claims in the tribunal and to get them to pay out by way of settlement to avoid the risk. Current legal expenses policies tend to exclude fines and penalties from the sums covered, so it will be the employer alone who bears this cost. So much for all the Government’s employer-friendly noises!
