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Employment Law

Legal guidance - compliance - software

28 SEP 2011

BIS reveals its hand

Sean Jones

BIS has published its Second Statement of New Regulation. It can be found here: http://goo.gl/bD9aO (many thanks to Paul Callaghan at Taylor Wessing for the tip off). There are two points bound to catch the eye of Employment Lawyers. The first is a reinstatement of the two year qualifying period for unfair dismissal:

"To cut the regulatory burden facing British businesses the Government has ...consulted on changes to employment law that will give business the confidence to take on staff. We are increasing the qualifying period for employees to be able to bring a claim for unfair dismissal from one to two years and introducing fees for lodging employment tribunal cases to tackle vexatious claims."

 The one year period was introduced because the longer period was found indirectly to discriminate against women. It seems likely that there is going to be some close statistical scrutiny to be done in the near future. Indeed, the excellent agediscrimination.info are already on the case: http://goo.gl/DQASu.

Note, also the introduction of fees. This is supposed to "tackle vexatious claims". One would need to know how much it was proposed to charge in order to assess the extent to which the fees will discourage commencement of claims but one can see an immediate difficulty with the rationale: the effect of a fee is to discourage claims from those who cannot afford the payment rather than specifically those who have unmeritorious claims. That means its greatest impact will be on the low-paid and recently dismissed; precisely those that the "informal" tribunal process was supposed to assist.

The second proposal of interest is:

 "[Consultation] on removing Equality Act requirements for businesses to take reasonable steps to prevent harassment of their staff by third parties. This is something that businesses have no direct control over and will save them £0.3 million."

This is a puzzle. First, £300k seems a paltry saving to justify taking a step that will result in people being exposed unnecessarily to harassment in the course of their work. It's the cost of an individual banker's bonus spread across all employers in the country. Secondly, it is far from clear what BIS means by "this is something that businesses have no direct control over". The point of the duty (EA 2010, s. 40(2)) is compel an employer to act where there is a sufficient degree of control. The duty is, in any event, set very low and only requires an employer to take such steps as are "reasonably practicable".

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