Sack ’em

By: Michael Scutt

Date: 8 November 2010

New research shows six out of ten of us think it’s too hard to sack a rubbish worker. And with tribunal cases up two-thirds since the recession, do employees now hold the whip hand? Michael Scutt asks… is it too hard to sack employees?

Do you think the law is too difficult for employers? Unfair dismissal, redundancy and employment rights are in the news at the moment. Lord Young has already confirmed that the government is considering doubling the qualification period for unfair dismissal to two years’ continuous employment.

Winifred Robinson tackled the issue on Radio 4 recently, in “Sack ’em”, a documentary about current employment law. It was a very even-handed affair and looked at the eternal question of whether the pendulum of fairness has swung too far towards the employee. It’s well worth listening to on iPlayer.

Experts on the show made great play of the issue that justice is denied to many employers because it is cheaper to settle than fight a claim. I think they made too much of that: all litigation functions on the same basis, even where there is costs shifting from loser to winner. However, that doesn’t generally happen in the employment tribunal (ET) and because each party bears their own costs - win or lose - it does encourage more brinkmanship and spurious claims.

If you want to redress that balance, get ETs to start imposing costs orders more readily, as I have written previously. ETs have the power to award costs where one party has acted unreasonably but are reluctant to do so. If you want to discourage serial or spurious claims, introduce issue fees.

But is it too difficult to sack employees? Does the law favour employees too much? Should employers be “running scared”? In my view, no. The key is to be prepared. Problems arise where employers haven’t set up the paperwork properly. Typical issues are inadequate or non-existent contracts of employment; poorly drafted or non-existent employee handbooks; a lack of consistency in how what policies and procedures that do exist are imposed. Entrepreneurs thinking of expanding and taking on staff for the first time should get advice from an employment lawyer or an HR consultant. Do your homework and be prepared.

The Government is planning a full review of employment law which may be completed by the end of the year; we may see significant changes on the cards. My money is on the introduction of issue fees in the ET when commencing a claim: a dead cert, surely, given the age of austerity in which we live. The Court Service has been required to raise funds towards its running costs for several years now – and look at the size of some court fees you have to pay if you want to bring a claim in the County Court or the High Court.

Similarly, the rules of procedure in the ET have become more complicated over the years and have moved ever further towards the Civil Procedure Rules (CPR) that govern civil claims. This isn’t surprising given the increasing complexity of ET claims.

I think the time has come now to completely reform the system for litigating employment disputes: I would abolish the ET altogether and hand over its entire jurisdiction to the County Court. This ought to save costs but, more pertinently for lawyers, end the ongoing jurisdictional difficulties over where claims can be brought, especially in breach of contract cases.

What do you think? A step too far or a dose of common sense?

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