Employment Protection – Is it fit for purpose?

Robert Bedford, Past President and Council Member of the Hertfordshire Law Society, is an Employment Partner at Machins Solicitors, Luton. Here he considers the effects of the changes in employment legislation on vulnerable and low-paid employees

The Introduction of Employment Tribunal Fees

The introduction of fees to bring claims in the Employment Tribunal 18 months ago, coupled with increasing the length of service requirement to bring a claim, has seen a dramatic reduction in the number of claims being made. Published figures suggest that the number of claims being made have reduced by almost 80% compared to the level they were at before the changes were introduced. As a result, even the viability of the Employment Tribunal itself has being called into question.

Some commentators have questioned whether a reduction in the number of claims being made is necessarily a bad thing. They point to anecdotal evidence suggesting that many employers were being forced to incur significant legal costs to deal with spurious claims by aggrieved former employees, and suggest that the changes in the rules simply addressed an unfair burden that such employers were being forced to bear. However, it is surely nonsense to suggest that such cases are represented by the 80% reduction that has occurred.

Luton Citizens Advice Bureau

As an employment lawyer in a firm with a largely corporate clientele, the majority of the cases that I deal with involve acting for the employer in defending employment tribunal claims. However, as part of my firm’s Corporate Social Responsibility, I am also a trustee of the Luton Citizens Advice Bureau, where I provide a couple of hours free advice each week. Doing this work has given me a completely different perspective on the effect that the rule changes have had.

The majority of the people that I see at Luton CAB are low paid employees, frequently from minority ethnic groups where English is not their first language and with limited education. These are the very employees that the employment legislation was designed to protect but it is clear that as a result of the changes that were introduced 18 months ago it is woefully failing to do so.

Some Typical Cases

• An employee who had worked at a restaurant for 18 months was told that he was no longer required. He was not given any notice or pay in lieu but simply told that he had been sacked. I had to tell the employee that he could not claim for unfair dismissal because he had not been employed for two years and that the only claim he could bring would be for breach of contract. However, in view of the fact that he was only entitled to be paid for one week’s notice and for any untaken holiday he had accrued, and the fact that to make a claim in the Employment Tribunal the fee he would have to pay was more than the amount he was owed, the reality was that it was probably not worth his while in pursuing the matter further.

• An employee who, again, had worked for less than two years was dismissed. Not only was he not paid any notice but he was also not paid the salary he was owed for the previous month. The lack of money caused him genuine hardship but again I had to advise him that although he could make a “Wages Act” claim in the Employment Tribunal to reclaim the money he was owed, he would now have to pay a fee to do so, which he simply lacked the means to pay. I also explained that there was a procedure he could follow to claim a remission from fees but I knew that the procedure is difficult to follow and not straightforward and the employee, who had only limited English, was unlikely to be able to do so.

• A young foreign student had been working at a local restaurant to try and help finance her studies. Her employer had frequently delayed in paying her salary and had then told her that she was dismissed; again owing several weeks’ pay. As usual she had insufficient service to bring an unfair dismissal claim and I explained that her remedy would be to bring a “Wages Act” claim but with the usual practical problems this entailed. However, she had to return to her home country later in the year and the fact that there was no guarantee that her claim would be heard before she returned meant that she could not risk adding to her losses by incurring further costs to pursue the matter; a fact I suspect her employer knew very well.

Lack of Protection for Employees

These cases are typical of the matters I deal with each week. I have little doubt that some employers are well aware of the lack of protection their employees now have and use this to their advantage.

In the current political climate it is likely that fees are here to stay. However, unless we want to turn the clock on employment protection back by 50 years, there is surely a need for the government to be alive to the problems the rule changes have created and ensure that employment legislation provides protection for the most vulnerable employees; something which at present, in many cases, it is failing to do.

This article was first published in the Spring 2015 edition (issue 26 page 6) of the Hertfordshire Law Society Gazette www.hertslawsoc.org.uk