by Victoria Phillips – 22nd January 2013, 8.30 GMT
Firing workers at will is just one of the radical changes to employment law the government is planning to introduce this year.
Capping unfair dismissal awards is another as the Coalition carries out the most significant reforms to the system in 14 years.
Ministers are using the Enterprise and Regulatory Reform Bill (ERRB) to carry out the changes. The Bill is currently in committee in the House of Lords and is expected to pass into legislation in April.
There’s a chance that some of its most damaging provisions will be amended in the Lords, and already the government’s amendment abolishing the Agricultural Wages Board has been rejected by peers.
But the Lords’ efforts to stop the worst excesses in the Legal Aid (LASPO) Bill were swiftly reversed by the Commons and coalition MPs will be whipped to do the same again.
One of ERRB’s key provisions is enabling employers to hold “pre-termination negotiations” (otherwise known as “protected conversations”), allowing employers to fire at will, knowing that a Tribunal cannot take the conversation into account when considering a claim for unfair dismissal.
Compromise agreements will be renamed as settlement agreements and there will be a new requirement to provide information to ACAS before lodging an Employment Tribunal claim form.
The Bill enables the Secretary of State to cap unfair dismissal awards. We now know this will be a cap of 12 months’ pay, alongside the current overall cap, meaning that if 12 months’ pay for a unfairly sacked employee is more than the overall cap, they get the lower amount.
So not only will an employee whose life has been blighted by their employer’s wrongdoing and whose losses significantly exceed twelve months’ wages lose out on compensation they are morally due, but their employer is allowed to limit the effect of their behaviour, leaving them free to repeat it.
Equality Act provisions on third party harassment and discrimination questionnaires will be repealed by the Bill and the statutory consultation period for collective redundancies where 100 or more employees are proposed to be made redundant will be reduced to 45 days.
And a worker making a protected disclosure (whistleblowing) will no longer be able to bring a claim for breach of contract unless there is a “wider public interest”.
Two brighter spots amid the gloom of the government’s dismantling of employment rights legislation is the new power for employment tribunals to order an employer to carry out an equal pay audit where there has been an equal pay breach.
And there will be penalties on employers who have breached employment rights where the breach has aggravating factors. But it’s not much of a penalty or remedy that is capped at £5,000 and is paid to the State not to the employee.
Other employment law changes due in this year are employment tribunal fees, amendments to employment tribunal rules likely to load the dice in favour of employers, and the much derided “shares for rights” employee-shareholders gimmick.
There’s still more on the horizon. Business secretary Jo Swinson announced last week a consultation on changing the TUPE regulations, removing the so-called gold plating hated by the business lobby and amending provisions introduced in 2006 which all sides have found helpful and which have reduced legal wrangles, but which the government claims hinders the transfer process. Ministers simply want to make it easier for employers to offload their workers onto others without having too much regard for their rights.
Victoria Phillips is head of employment rights at Thompsons Solicitors.