In my career, I’ve come across numerous dodgy employees who have made malicious or vexatious claims against employers, usually as payback for perceived harsh treatment (like actually being made to work hard, or being dismissed for being rubbish) but sometimes just as a way of making a few bob. So the race card has been played, or the gender card, or the ‘I may have been rubbish but it’s all your fault anyway’ card. That said, I’ve also known plenty of dodgy employers or managers, that have treated people badly and tried to get away with it on the basis that employees are ignorant of their legal rights, or would find it too much effort to pursue those rights. So, devils on both sides – but who will benefit most from the upcoming tribunal reforms?
From next April, an employee will need 2 years’ service to be eligible to claim for unfair dismissal – not the current one year. Not only that, but from April 2013, anyone wanting to kick their employer’s butt in a tribunal will have to pay between £150 and £250 for submitting a claim, and a further £1,000 for progressing to a hearing. The point of these reforms is to reduce the number of spurious claims made by disgruntled employees, who are no doubt hoping that even if they have only a snowball’s chance in hell of legal victory, their employer will cave in and settle out of court. Which often happens, if employers decide to avoid the time, expense and hassle of a tribunal hearing and cut their losses, despite high chances of vindication.
At the moment, a claimant can pursue their claim at no cost other than their time and effort, and then drop the case at the last minute if it seems their employer is prepared to put up a fight. So we can see why the charges could be a deterrent to someone who isn’t willing to gamble over £1,000 on the staying power of their employer. But what about those who have a meritorious claim, but who don’t have the readies? If you can speculate to accumulate, that’s great – but no doubt plenty of people with a genuine case just can’t afford to cough up the cash while they wait for the legal cogs to slowly churn. There may be some means-tested waivers introduced, but as yet this is undecided.
Some employees, who may be underperforming or just getting on people’s nerves, find themselves unceremoniously dismissed with no process or procedure after 11 months’ service, thereby avoiding eligibility for unfair dismissal claims. On the plus side for them, the reforms could give them another 12 months of employment to prove themselves before their unscrupulous employer decides to kick them to the kerb with no thought to the ACAS code of practice. But that is poor solace when you get dumped anyway and still can’t do anything about it.
Some organisations won’t hire people they think could be litigious, for fear of a dubious claim arising. As a result, people are often reluctant to make genuine claims in case it hampers their future employment prospects. So maybe the 2-year rule will calm the nerves of edgy employers and give previous claimants more of a chance in the jobs market.
Whichever way you look at it, there are pros and cons for both sides and no easy answer. Maybe a better idea would be to fine those whose claims are clearly proved to be vexatious after the event, or provide loans for the fees that only have to be repaid if claims turn out to be rogue. (Something for trade unions, solicitors etc. to consider maybe?) But the best way of avoiding both claims, both vexatious and genuine, is to have a fair, objective and legally robust set of policies and procedures, well trained managers and staff to implement them properly, and a culture of openness, honesty and integrity. That not only limits the reasons for genuine claims, but also the opportunity for false ones.
Then again, maybe the best solution is simply ‘Don’t be an evil employer treating people badly, and don’t be a fraudulent employee trying to blackmail your employer’. But let’s face it, having everyone doing the right thing is never going to be realistic, is it?!