The Employment Reform and Regulatory Reform Bill, currently before Parliament, contains a series of measures which are likely to make life harder for every worker.
Press coverage has focussed on plans to reduce the maximum compensatory award that an employee can be awarded for unfair dismissal from around £72,000 to around £26,000. Few claimants win the maximum award, but it is an important benchmark in high value cases. These claims usually settle, because employers do not want evidence of bullying, etc, to be in the public domain. So this is all about reducing the financial liability of employers who behave unreasonably.
Two further provisions have slipped under the press’ radar. One is the idea, similar to the “cooling off” period in strike ballots, that workers who bring claims should first submit a claim to the conciliation system Acas. In place of the present, relatively simple rule that a claim should be submitted within 3 months of the act about which the worker complaints, the government has come up with new formula that in future a worker will have 3 months plus some, but not all, the time the claim is with Acas. Unless the provision is reformed before the Bill is passed, every employer will have an interest in fighting tribunal battles not about the substance of the claim but just about whether the claim was put in on time.
The other novelty is the government’s plans to introduce “protected conversations”, where a manager, on reaching a preliminary view that a worker could be dismissed, would invite the worker to a meeting where they would be told that, if they agree to resign, they would receive some modest compensation. The conversation is “protected” in that whatever the manager tells the worker, the worker will not be allowed to report later in Tribunal proceedings. This is a system which is ripe for abuse; for example when a worker explains that they have no desire to go without a fight, and the manager starts abusing or threatening them.
The proposals are silent as to whether employers would be required to allow trade union reps to attend protected conversations. They are also silent as to whether lawyers would need to be involved before an agreement reached during a protected conversation could be binding. My best reading of the legislation is that the government is not bold enough to do away with these deeply-entrenched rights, but rogue employers will use this silence to take back whatever they can.
Not in the Bill, but providing the context to it, is the government’s plan to introduce from summer 2013 hearing and issuing fees in the Tribunal ranging from £400 in unlawful deduction of wages cases, £1200 in unfair dismissal and £1600 in discrimination claims. Workers will pay the fees; employers will pay nothing. These fees represent roughly 25% of a claimant’s likely award, in theory they could be claimed back on winning the claim, save that Tribunal awards are poorly enforced and only around 40% of employers pay Tribunal awards in full.
Fees are also a threat to unions. Around 2% of employees are dismissed in any year. If you take a union like the RMT with around 75,000 members, that’s 1,500 people. If each was to bring an unfair dismissal claim, with the union’s backing, that would require the union to pay £1.8 million a year, merely to get the same limited access to Tribunals that workers have now. This is equivalent to around 25% of the union’s entire national budget. No union could cover the “hit” that fees will represent without to some extent cutting back on the number of cases they fund.
The introduction of fees is bitterly unpopular with lawyers and judges. A serious union campaign against fees would have a real chance of success, but the details of fees has been in the public domain for 4 months now and there are far too few signs of one starting any time soon.
Finally, while a successful strike may stop a dismissal, barely one in 500 successful unfair dismissal claims ends in an order reinstating a claimant. Even while we campaign against the Coalition’s attacks, there is an argument for socialists to win as to what are the most effective means in fighting for workplace justice.
(originally published in Socialist Review, October 2012; edited in this online version)