All change – proposed amendments to employment law

Radical changes?

As reported in the news update on 25 November 2011  the Government have announced a raft of proposals, which could result in radical changes to employment law.  There is already a wide range of opinion on the pros and cons for each of the proposed changes.

There appears to be a general consensus amongst employment lawyers and groups representing both employers and employees that some of the proposed changes make sense and are to be welcomed, including: early conciliation via ACAS/mediation (provided ACAS funding is increased); simplification of compromise agreements (or settlement agreements as they are to be called); and bringing to an end the ability for employees to assert whistle-blowing based on a breach of their own contracts.   Many also welcome the calls for evidence in relation to the TUPE Regulations and collective consultation in redundancy situations (see below).

There is significantly less support for proposals such as: the introduction of “protected conversations”, which many see as nothing new (without prejudice discussions being the most obvious example) or creating more problems than they would solve due to the exclusion of discrimination from their scope and the inevitable arguments about whether or not a conversation was in fact a “protected” one; the doubling of the unfair dismissal qualifying period to two years, in relation to which many commentators do not accept the rationale, namely it will encourage employers to hire staff and consider it will do nothing other than increase the number of discrimination/whistle-blowing claims for which there is no qualifying period of service; and the introduction of penalties (up to £5,000) for employers who lose claims dismissed by many as a revenue raising exercise but which given the level of penalty and possible limitations on applications are unlikely to have a significant impact.

The devil is in the detail of course and in relation to the more controversial proposals it will be interesting to see how proposals are fleshed out following the various consultations and reviews, which are now underway.

Calls for evidence

As part of the proposals to change employment law, the Government has issued two separate calls for evidence.

First, the Department for Business Innovation and Skills (BIS) is currently seeking views on the effectiveness of TUPE 2006. Specifically, on the areas of service provision changes and whether the insolvency provisions should specify which insolvency proceedings they apply to and how the interaction of TUPE and collective redundancy consultations could be improved. The closing date for responses is 31 January 2012. A formal consultation will follow if the responses indicate a call for change.

Second, BIS is also seeking views on the operation of the rules for collective redundancy consultation. In particular, the form of the consultation process, the period of consultation and impact of it where proposed redundancies have significant consequences for a particular region/sector. It will also consider the overlap with other legislation, namely TUPE. The closing date for responses is also 31 January 2012. Again, a formal consultation will follow if the responses indicate a call for change.