The latest changes to unfair dismissal rights are not a clear cut route to fewer tribunals as discrimination claims are likely to fill the gap and employers must also deal with the challenge of managing social media in the workplace.
Following the announcement of a new two-year qualification period for unfair dismissal by the Government last week, experts are warning employers that it may just mean a shift in the type of claims made.
Under current rules, a claim for unfair dismissal can be made after being with an employer for a qualifying period of one year. That will increase to two years from April 2012, and the Government is also looking at a proposal to charge the employee a tribunal fee of up to £1250 to bring any such claim.
The announcement has come following consultation on routes to resolve workplace disputes and encourage business to stimulate employment prospects, but experts are saying it's unlikely to bring the benefits promised.
Said Richard Pennington, employment expert with Town solicitors Firm : "The Department for Business has suggested this change could save employers £6m a year in tribunal costs, and see unfair dismissal claims fall by around 3000 a year, but it's very likely that we will simply see an increase in other types of claim which are potentially more costly and time-consuming to defend."
Claims are increasingly being linked to discrimination and to whistle blowing, which can be made from day one of employment. It is being predicted that these will rise, as workers who believe they have been dismissed unfairly before the two year qualifying period could claim they were discriminated against, or harassed for speaking out about company practice. Discrimination claims currently have no upper limit at tribunal, whereas unfair dismissal is capped at £68,400.
Recently published figures from the Ministry of Justice show there was also a sharp rise in the number of claims for age discrimination last year, and with the recent removal of the default retirement age at 65, these look set to increase.
And now the latest area to come under the spotlight for employment practice is managing social media in the workplace. Cases are on the up, with two recent examples highlighting the need for companies to have clear policies in place to avoid this new minefield. Earlier this year, pub chain Wetherspoons successfully defended an unfair dismissal case after an employee posted rude comments about customers on her Facebook account during working hours, with judgement going in their favour because they had a clear policy which set out grounds for disciplinary action, and which they had properly implemented.
But in the most recent tribunal decision, Whitham v Club 24, an employee who let off steam on Facebook was found to be unfairly dismissed. Here the case hinged on the lack of clear social media policy combined with a failure to follow the processes that were in place for misconduct.
Richard Pennington added: "Of course employees need protection against bad employers, but more often than not, cases will succeed because due process has not been followed by an employer, rather than because of any planned intent. The moral is that employers must make sure they keep up to date with the law and that both policy and practice are robust - that is the surest way to reduce this risk and minimise tribunal costs."
The proposal to introduce a tribunal fee on employees is intended to tackle weak and groundless claims, and this will go to consultation next month to look at the amounts involved, and what reduced rates may apply to those who are unemployed or on low incomes. It is unlikely any such fee would be introduced before 2013.
If you require further information on the above issue or any other employment matter, please contact a member of our Employment Law team on 01553 660033.
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