A lot of the damage to employment rights is done in the small print. Attention has focused almost exclusively around the ‘Beecroft-lite’ proposals that make it possible for employers to sack their workers without just cause in exchange for shares worth some £2,000. However there is a host of other, little-noted, changes in this week’s Enterprise and Regulatory Reform Bill which will severely curtail workers’ rights.
The cap for compensation in unfair dismissal cases is being significantly lowered. There is much reduced protection for workplace whistleblowers, which will allow more abuses at work to go unreported. It is disturbing that the role for legal officers in deciding cases is being extended, whilst the role for lay members in the Employment Appeal Tribunal is being cut back. There is also a malign purpose behind the Bill’s giving enhanced powers for tribunals to require payment of deposits in order to deter so-called weaker claims.
There are many other concerns too, the seriousness of which may not be immediately apparent on the surface. The government is introducing regulations requiring claimants to provide prescribed information when using ACAS conciliation services. That may sound innocent, but there is fear that employers will then challenge claims made at the tribunal on the grounds that the worker has not provided sufficient information and therefore the claim is dismissed – a deliberately nitpicking hurdle inserted, as in the notorious pre-strike procedure, to enable judges to abort action on a technicality. Similarly, the new rules about legal officers could allow persons who are not employment law specialists and have not had judicial training to decide some employment rights claims.
The government is also seeking to overturn the level playing field of employment tribunals. Reducing the role of lay members will remove the influence of those with direct industrial relations experience. Regulations are proposed to establish EAT panels where the employer representatives outnumber the employee representatives, thus undermining confidence in the impartiality of the whole EAT process.
Whistle-blowing claims will only be successful in future if the worker believed that the disclosure was made in the public interest and can demonstrate it was reasonable for him to believe that. One effect of that will be that it will limit the protection for workers who raise concerns about health and safety issues. The regulations will also in future allow a judge who has (subjectively) decided that a claim has little reasonable prospect of success to require a deposit of £1,000 to be laid before the claim can proceed. This will make it much harder (as was of course intended) for some claims to proceed even when in the event they would have won through.