It's all change again in 2014 for employment law
PUBLISHED: 16:04 17 January 2014 | UPDATED: 16:04 17 January 2014
It's now less risky to dismiss an employee than it has been in living memory (almost). Having said that, it has always been easier to dismiss than many employers think. The introduction of a £250 fee for an employee bringing a claim in tribunal has started to discourage chancers, but like some sort of medieval poultry market, those with a keen eye for an opportunity are already advertising "pay day loans" to assist the beleaguered employee to bring their claims before a judge (Isn't the entrepreneurial spirit wonderful?).
But the changes both last year and forthcoming are not all one way, and employers will be wise to focus not only on the ease or otherwise of dismissals, but also the terms on which employment is given and how it’s managed. This is not going to be a year where employers gallop with unbridled spirit through the employment landscape.
Already last year we saw changes to some legislation that do not appear to be for the best. Whistleblowing protection for employees for example. This is legislation which protects employees if they raise a public interest disclosure. So if you have been taking cash as payment for example (and I am sure no readers of this publication would do such a thing) then an employee could report this to HR Revenue and Customs and the employer could not penalise them in any way, or if they did, face significant financial penalties. The old legislation prevented malicious employees raising matters simply in order to be a pain, by requiring that any report by an employee had to be raised in good faith, ie with a genuine purpose of righting (or preventing) a wrong. That requirement has now been removed from the legislation, so employees can raise issues simply to create difficulties or claim protection from rightful dismissal, and still benefit from whistle blower protection. Putting aside the rights or wrongs of cash deals, or encouraging a society where we spy on each other, employers will now have to manage such situations carefully.
April will also see the introduction of fines against employers who lose a tribunal case. The fine will mean that whatever the employee wins, the employer will now have to pay a further 50% of that amount directly to the Chancery as a fine. It will assist employers to know that awards are now capped at 1 years pay, but still that leaves an employer facing a potential cost of 18 months money if they lose a tribunal.
Further headaches in store for the New Year come from the right of any employee to request flexible working. The headache comes not from the prospect of having someone working flexibly, but from the requirement to deal with such requests in accordance with the statute (arranging a meeting within a set time etc). The actual right itself is something of nothing, it is only the right to ask the question, not a right to actually work flexibly.
Add these changes to the courts own rulings recently, insisting for example that workers who sleep in must receive the minimum wage while they slumber, and more onerous pension obligations on employers who take on public sector employees, and one can see an employment landscape where the employer has to have their wits about them as much as ever, if not more.
My prediction for the coming year is not one associated with any legislation. Us employment lawyers have all seen a trend for the Facebook and Twitter type mediums to become a source of some angst for employers as employees, whose purging was once confined to the pub or the tea room, now bemoan their lot at work to an ever widening audience via social media. Last year saw employers seeking advice on this question with examples ranging from Facebook comments doubting an employer’s parentage to a young worker texting a photo of his own privates to a receptionist in a rather clumsy attempt to woo her (Whatever happened to asking a girl out to the pictures?).
For the coming year it remains “situation normal”. Employers need to imagine a see saw, with aggravation on one side and cost on the other. As one side goes up, the other goes down. With the right advice, employers can set the see saw where they want it and achieve what they need to. It seems that no one runs a business for the joy of employing people. Happy New Year.