When will the Government stop taking away workers’ hard-earned employment rights in the name of cutting red tape?

Pattinson & Brewer employment specialist Paul Statham on yet more government changes to employment law …

In a written ministerial statement – bit.ly/1bjMlev – Jo Swinson, the Parliamentary Under-Secretary of State for Employment Relations and Consumer Affairs, made a series of further announcements as part of the Employment Law review and the so-called ‘red tape challenge’.

Firstly, the Government announced its intention to replace current legislation in the recruitment sector with a new framework which will allegedly remove some of the burden from business, whilst continuing to protect people who are looking for work.  With regard to the abuse of upfront fees in the entertainment and modelling sector, the Government intends to speak informally to stakeholders to better understand the issues.

The Government also published its response to the consultation on pre-action conciliation by ACAS, which is now to be renamed “early conciliation”. I commented in a previous blog (9 July) about renaming compromise agreements as ‘settlement agreements’, and this renaming appears no more significant. The response deals with a lot of technical issues, but the headlines are:

• The information to be provided by prospective claimants will be very simple, and will only provide contact details for the prospective claimant and contact details for the respondent. It will not have a box to insert details of any prospective claimants’ representatives, and will not require them to provide details of what any dispute is about or what they are claiming. This means that in a subsequent tribunal claim, the tribunal will not be restricted to considering matters which have been detailed in discussions with ACAS. They can consider any claims against the prospective respondent named in the Early Conciliation form.
• The requirement to apply for Early Conciliation with ACAS will apply to all cases except claims for interim relief. This means that cases involving awards under the TUPE Regulations 2006 will be covered, as will cases where a prospective respondent may be insolvent. Whistle-blowing cases will also be covered on the basis that the prospective claimant can always decline to enter in to Early Conciliation once they have lodged their request, if they fear victimisation.
• When ACAS issues an Early Conciliation certificate, which will be necessary in order to bring a claim in the Employment Tribunal, the document will indicate it is an important document and should be kept safe. Where a prospective claimant is unable to locate the certificate they will be able to contact ACAS to obtain their reference number.
• The certificate will not, however, explain the ‘stop the clock’ provisions with regard to extending the time limit for bringing a claim in an Employment Tribunal. No doubt this is because they are horrendously complicated and cannot be explained in simple terms. These are set out in Section 8 and Schedule 2 of the Enterprise and Regulatory Reform Act 2013.
• Where Early Conciliation results in a settlement, this will be recorded in a COT3 Agreement, and no early conciliation certificate will be issued as long as the agreement results in a settlement of the case in its entirety. If it does not, ACAS will issue an Early Conciliation certificate.

The Government’s indicative timetable states that Early Conciliation will be brought into force on 1 April 2014.

The Minister also announced a call for evidence on the reform to whistle-blowing law. The consultation closes on 1 November. The questions asked in this document bear a remarkable resemblance to the questions asks by Public Concern at Work in their recent public consultation, which closed on 21 June.

Finally, the written ministerial statement says that the unfair dismissal (variation of the limited of the compensatory award) Order 2013 will come into force on 29 July. This will reduce the cap on the compensatory award for unfair dismissal to the lower of £72,400 or 52 weeks pay for the employee in question. The new limit will apply where the effective date of termination is after the date when the Order comes into force.

No doubt respondents’ lawyers are already advising their clients intending to dismiss employees to delay any dismissal until 29 July, when any compensatory award will be capped.