After several weeks of drip-feeding announcements to the press, the Con Dem government has finally revealed its plans for Employment Tribunals.
There are three main proposals. First, it is intended that no worker will be allowed to bring a claim to the Tribunal except after having paid a £500 fee.
Second, workers will not be able to bring an unfair dismissal claim until they have been employed by their employer for a minimum period of two years.
Third, there will be an “Employer’s Charter”, which bosses will be able to keep to hand and which will inform them of their “rights”.
The government has no mandate for its plans.
The sole reference to Tribunals in the Tories 2010 election manifesto was extremely vague: “We will review employment and workplace laws, for employers and employees, to ensure they maximise flexibility for both parties while protecting fairness.”
These new proposals have nothing to do with fairness.
At present, there are a total of around 240,000 employment tribunal claims a year. Of these only around one sixth make it to a full hearing. Of those that do, workers succeed in very roughly two-thirds of cases.
Of course, these figures don’t tell the whole story.
One of the reasons why so many workers win is that a large proportion of the cases which make it to a hearing, concern relatively small sums of unpaid wages.
More significant claims—such as unfair dismissals or discrimination claims—are much harder to win.
And even when workers do win, Tribunals awards are notoriously low.
But, looking at the system as whole, there are very many strong cases brought by workers and relatively few cases that are utterly hopeless.
In these circumstances, there can be no justification for requiring workers to pay a fee to bring a case, and not requiring employers to pay a fee, to defend it.
The plan that workers should have to have two years’ continuous employment before bringing a dismissal claim is also intended to help employers.
When the Tribunal system was first established in the 1970s. The qualification period for unfair dismissal was six months. This was increased under the Tories in the 1980s before being reduced to its present figure of 12 months in 1999. This came after the House of Lords ruled that a two years continuous service requirement discriminated against women who were less likely to remain in post long enough to qualify.
In the fine print of the government’s proposals it is suggested that making these changes to the present system will achieve a year-on-year transfer of wealth from workers to around employers of around £90 million per year.
This figure is almost certainly an underestimate.
But what is clear is that these reforms are all about making life easier for people with money, and harder for those without.
As for the so-called Employer’s Charter, this will have no legal status but is supposed to remind bosses of rights they have already.
So, according to the Daily Mail, bosses will be reminded of their right to sack workers who perform poorly at work, or the right to insist that a worker only takes their holiday when the employer allows them to do so.
But whoever drafted the Charter clearly knows little about the law.
Dismissing a worker for poor performance is only fair (i.e. lawful) where a worker is offered real opportunities for training first, and given a fair chance to show whether they can do their job.
That position will remain the same whatever it says the Charter.
The picture is very similar with holidays. The right to take leave is a matter of European, not UK law.
To a limited extent an employer can insist on when a worker takes some of their leave. For example, if an employer insisted that a school teacher did not take all her year’s annual leave entitlement during the first four weeks of the autumn term, that would probably be a lawful order.
But if an ordinary employer said to an ordinary worker that they had to take all their leave in January, and could have no holidays between February and December, that would be an unlawful instruction, and will remain unlawful in future.
The Charter will set out various of these employer’s “rights”, but it won’t change the law. It will be, in short, both a weak and nasty measure.
These are not the only ideas being canvassed by government that will impact negatively on Tribunal claimants.
At the same time, the government is seeking to remove legal aid from claimants in wages and dismissal cases and introduce new means tests to reduce the number of workers able to claim legal aid.
And of course, behind all their plans, are the public sector cuts that will see hundreds of thousands of workers lose their jobs in the coming years.
If there is any glimmer of hope, it is simply this: For forty years, governments of both stripes have promoted the use of Tribunals as a way of solving workplace disputes which bypasses the places in society where workers have always had the greatest strength—in their trade unions, and on when strike.
There will in all likelihood be fewer Tribunal claims in future.
But if there were more strikes, workers in their millions could yet benefit.