Employment Update – Radical changes ahead
It would be difficult to have an e-bulletin for this month without first mentioning the radical changes to Employment Tribunals that have been proposed by the Government. It would appear that the Government is committed to increasing the qualifying period from one to two years for a claim of unfair dismissal from April 2012 and from April 2013 it intends to introduce fees in order for claimants to bring Employment Tribunal claims. The Government proposes to consult on the level and structure of fees later this year.
Increasing the Qualifying Period from One Year to Two Years
What are the possible outcomes of increasing the qualifying period? Whilst the obvious outcome may well be a reduction in claims for unfair dismissal, we would suggest that there will be an accompanying increase in other claims. If an employee is unable to bring a claim of unfair dismissal because of the qualifying period then they will look for other ways to bring a claim such as discrimination or whistleblowing that may result in longer, more complex hearings.
The second possible outcome is that the raising of the qualifying period may be indirectly discriminatory in that those with some protected characteristics are less likely to achieve the necessary qualifying service when compared with groups that do not have the protected characteristic.
The Introduction of Tribunal Fees
It has been widely reported that Claimants will pay a fee of £250 in order to bring a claim in the Employment Tribunal and a further £1,000 in order to have the claim listed, with the fees being higher if the claim is above £30,000.
A successful Claimant will have their fees returned to them. We are told that there will be some form of fee remission for the worst off, but the specifics have yet to be announced.
It has been suggested that the advent of fees may well have a number of effects not all of them positive and a number of questions have so far been left unanswered:
- Less early settlements as employers wait to see if a Claimant can afford the £1,000 fee
- The fees suggested go beyond that which are charged in small claims in the County Court
- At what point in case management will the figure of £30,000 be applied? How will this be administered?
- If fee remission is attached to benefit entitlement, what happens to those who have been refused benefits due to the reason for their dismissal and when, where and how will remission be applied for?
- Who pays the fees if the case settles?
- Who pays the fees if the case is withdrawn following settlement on a compromise agreement and would employers be expected to pay in these circumstances?
The next few months will prove to be interesting as these points and other proposed reforms of the Tribunal system are fleshed out. We will of course keep you informed as further information becomes available.
On a lighter note…
On a less serious side we bring you news of a novel approach to identifying those for dismissal and yes, we have returned to our neighbours across the pond!
Mr. William Ernst owns a number of convenience stores called QC Mart in Bettendorf, Iowa and has been described by some as the "boss from hell."
How did Mr Ernst earn the title? Mr Ernst considered that his employees weren’t following his customer care rules – don’t wear hats at work, don’t use your cell (mobile) whilst at work, wear your uniform, don’t have your friends hang out with you at work and don’t swear. Sounds reasonable, particularly in a customer facing situation, but Mr Ernst felt that having set down the rules and reminded his employees of them on more than one occasion, that he wanted to get serious. So he produced a memo with the title “New Contest – Guess The Next Cashier Who Will Be Fired!!!"?
The Des Moines Register reported that the memo stated:
To win our game, write on a piece of paper the name of the next cashier you believe will be fired. Write their name [the person who will be fired], today’s date, today’s time, and your name. Seal it in an envelope and give it to the manager to put in my envelope.
Here’s how the game will work: We are doubling our secret-shopper efforts, and your store will be visited during the day and at night several times a week. Secret shoppers will be looking for cashiers wearing a hat, talking on a cell phone, not wearing a QC Mart shirt, having someone hanging around/behind the counter, and/or a personal car parked by the pumps after 7 p.m., among other things.
If the name in your envelope has the right answer, you will win $10 CASH. Only one winner per firing unless there are multiple right answers with the exact same name, date, and time. Once we fire the person, we will open all the envelopes, award the prize, and start the contest again.
And no prize for picking Mike Miller from the Rockingham Road store. He was fired at around 11:30 a.m. today for wearing a hat and talking on his cell phone. Good luck!!!”
Understandably, a number of Mr Ernst’s employees were not happy with such an effective team building “game” and resigned seeking unemployment benefit. Given that they had resigned their jobs, their claim for unemployment benefit was tested within a court. Administrative Law Judge Susan D. Ackerman sided with the workers, calling the contest “egregious and deplorable” and awarding them unemployment benefit.
Mr Ernst was not available for comment.
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