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Trials, tribulations and tribunals

The headline of the Government’s tribunal reforms has been about the introduction of fees and the increase in qualifying period for dismissal. But as Heidi Watson, Senior Associate at Clyde & Co reveals, there’s a lot more besides that employers need to pay particular attention to, particularly in how tribunals will operate.

The first key change is allowing Employment Judges to hear unfair dismissal claims alone (without the need for lay members of the panel). This change became law in April this year and is already in full swing in the Tribunals. Assuming there is not wholesale objection to this by the parties to disputes (and therefore increasing the number of Case Management Discussions or appeals dealing with the question of whether a judge sitting alone is appropriate) commentators expect that this change will reduce delays in claims getting to hearing, as it will be logistically easier to diarise one judge as opposed to three panel members, and reduce the delays caused by a claim going part-heard, as it will be easier to recall one judge than three panel members. However, this rule only applies to unfair dismissal claims.

The second key change is for witness statements to be taken as read. Traditionally, the Tribunal has required witnesses to read their statement out before being cross-examined. This allows the Tribunal to hear the witness and some would say that it allows the Tribunal to consider the testimony in the witness’s own voice and to enable the Tribunal to consider the witness’s integrity. However, for anyone who has had to suffer witnesses’ laboriously reading out loud their statements will welcome this reform. Integrity can be tested in cross-examination. Allowing statements to be taken as read will reduce hearing times and overall commentators consider that this is a positive development.

The Government’s consultation on Tribunal reform proposes that employers should be required to pay a penalty to the Exchequer where it is found by the Tribunal to have breached employment rights. In one of the few proposals intended to benefit claimants, this provision will certainly give employers pause for thought. Alongside reform of the Tribunal system, the Queen’s speech outlined the Government’s commitment to provide for flexible parental leave. Whilst the detail of the Bill is still to be published, and the law is not expected to be implemented until 2015, we can expect it to largely reflect the Government’s proposals in its Consultation on Modern Workplaces which was published at the end of last year. Under these proposals, there will be a short 18 week maternity period following the birth of the child followed by a new 34 week period of shared parental leave which can be taken by either the mother or father of the child. The great challenge here will be changing the workplace cultures and practices which have so far prevented fathers taking up the increased rights to parental leave enacted last year.

The Queen’s speech also alluded to ‘flexible working’ but does not provide any further detail. It is assumed that this refers to the Government’s proposals in the Consultation on Modern Workplaces that flexible working should be extended to all employees with 26 weeks continuous employment although it is too early to say if this will become law. ‘Protected conversations’ have been another favourite of Coalition partners who are keen to see employers free to speak to employees about difficult topics such as performance issues and retirement without the fear of claims. Employee groups have lambasted this proposal as a charter for poor management, whilst industry lobbyists are keen to see the measure made law. Employment practitioners fear that it will be impossible to define the scope of these ‘protected conversations’ sufficiently to avoid additional litigation over whether a conversation was properly ‘protected’. The devil will, as usual, be in the detail.

Whilst many of the proposed changes are pro-employer in their intent, there have been some exceptions. Public anger at perceived excesses in executive pay has resulted in the Government including confirmation in the Queen’s speech that they will be legislating for shareholders to have a greater say in executive pay. Employee groups will be disappointed that the Government shied away from providing for employee representation on Remuneration Committees, preferring instead to encourage employees to utilise under-used powers under the Information and Consultation Regulations. Whether or not such utilisation is likely to flourish remains to be seen. The changes already in place and proposed in the Queen’s speech are mainly focussed on freeing employers from the burden of the Tribunal system and employment laws, with a few measures to benefit employees thrown in for good measure. Whether the Government is likely to achieve its aim of boosting growth and cutting costs in its plans for the Tribunal system and changes to employment laws remains to be seen.

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