Employee rights, changing to 2 years, help.

SarEl

MissSarah1972 wrote: »

So what we are saying is possibly when the new rule comes into play unless you have been with an employer two full years they can sack you and as long as they have gone through proceedure you can't clain unfair dismissal or they do not even have to follow proceedure?

The only thing that forces an employer to use a fair process (assuming the don't want to use one anyway) is that the process is what provides them with a defence at tribunal. If you cannot make a tribunal claim then there is nothing to make them do so. So it will mean that unless another law comes into play (dsicrimination for example) then the employer can dismiss you for walking on the grass on a Tuesday, and deliver the dismissal notice via a dancing troupe of elephants in tutu's... and there won't be a thing you can do about it until you have two years service. Assuming, even when you have two years service that you can afford whatever the fee will then be for lodging a claim at the (currently free) tribunal!

MissSarah1972

SarEl wrote: »

The only thing that forces an employer to use a fair process (assuming the don't want to use one anyway) is that the process is what provides them with a defence at tribunal. If you cannot make a tribunal claim then there is nothing to make them do so. So it will mean that unless another law comes into play (dsicrimination for example) then the employer can dismiss you for walking on the grass on a Tuesday, and deliver the dismissal notice via a dancing troupe of elephants in tutu's... and there won't be a thing you can do about it until you have two years service. Assuming, even when you have two years service that you can afford whatever the fee will then be for lodging a claim at the (currently free) tribunal!

so basically we are all screwed then and it may was well be the 1890's!!

SarEl

MissSarah1972 wrote: »

so basically we are all screwed then and it may was well be the 1890's!!

Nah. They haven't found anywhere they can transport us to yet.

tigeress289

Have the Unions given any kind of response to this move?

zzzLazyDaisy

I hold my hands up - I was one of the employment lawyers who doubted this would actually be brought in when it was first proposed. But I accept that I was probably wrong at the time (I never claimed to be an oracle!).

The change to two years is supposed to be April, but so far the change to the law enabling this has not been dealt with (as far as I know) and we still do not yet have a date. Although it shouldn't be a long process to do what is necessary to enable this change, so there is time yet.

I agree with Sar-El that this government has almost certainly looked at the situation that arose in the Seymour-Smith debacle and decided that they can counter the legak arguments this time round (which took almost 10 years to resolve last time and resulted in literally warehouses stacked with pending tribunal claims).

Personally I suspect that the discriminatory element still exists, as it is inevitable in times of economic downturn that the lowest paying jobs, and the part-time jobs, which are mainly staffed by women, will also be the ones which suffer the quickest turnover. What we will see is a return to employers than routinely dismiss at around 1 yr 11 months, because the jobs are low skill and easy to fill. Women are more likely to be affected by this because of their concentration in these roles. I hope that the unions and/or the EHRC launch a legal challenge, but frankly I'm not optimistic - both seem to be much more underfunded and less active in pursuing cases in the public interest than they were 20 years ago.

And yes, when the new rules come in, they will apply to everyone with less than two years' service including those who previously had more than one year's service. This is because the change relates to the date you will eligible to submit a tribunal claim, ie a date at some future point. NOT from the date you commenced employment per se (yes I know it sounds pedantic, and the end result is the same, but the latter would be deemed retrospective and the former is not strictly so).

SarEl

tigeress289 wrote: »

Have the Unions given any kind of response to this move?

Yes - they are opposed to the change of course. But they are only a strong as their members. All out strike anyone? Thought not...

SarEl

zzzLazyDaisy wrote: »

I hold my hands up - I was one of the employment lawyers who doubted this would actually be brought in when it was first proposed. But I accept that I was probably wrong at the time (I never claimed to be an oracle!). And of course I was of the opposite opinion, but still wouldn't claim to be an oracle

The change to two years is supposed to be April, but so far the change to the law enabling this has not been dealt with (as far as I know) and we still do not yet have a date. Although it shouldn't be a long process to do what is necessary to enable this change, so there is time yet. It hasn't been, but as we both know, it won't take much time. It is only an amendment to the legislation in place, not an entirely new Bill, and can easily be dealt with in a single parliametary session.

I agree with Sar-El that this government has almost certainly looked at the situation that arose in the Seymour-Smith debacle and decided that they can counter the legak arguments this time round (which took almost 10 years to resolve last time and resulted in literally warehouses stacked with pending tribunal claims). Well actually, I am sort of hoping I am wrong and you are right on this one! Not expecting it, but hoping nevertheless! After all, those who draft the legislation are civil servants and after all the changes to their conditions of service and cuts in jobs, well, maybe they "forgot" to mention it

Personally I suspect that the discriminatory element still exists, as it is inevitable in times of economic downturn that the lowest paying jobs, and the part-time jobs, which are mainly staffed by women, will also be the ones which suffer the quickest turnover. What we will see is a return to employers than routinely dismiss at around 1 yr 11 months, because the jobs are low skill and easy to fill. Women are more likely to be affected by this because of their concentration in these roles. I hope that the unions and/or the EHRC launch a legal challenge, but frankly I'm not optimistic - both seem to be much more underfunded and less active in pursuing cases in the public interest than they were 20 years ago.

I agree entirely that I still think the argument is there. The issue is whether the argument will convince this time, given the structural changes in employment and employment patterns throughout Europe. I know that several unions are preparing to mount legal challenges as soon as they have the opportunity, both to this and to the intention to introduce fees for tribunals (there are some interesting nuances on the proposals that are potentially exploitable).

On the other hand, maybe old age is making me a cynic. I do wonder if the government care whether there is a legal challenge and whether it wins or not. If we returned to a situation where tribunals are warehousing claims for up to a decade, what does it matter to them? Bleak though political prospects are, it is certain that they are unlikely to still be in government by the time any final judgement is handed down (so not their problem), claimants will be in limbo for years without the ability to prove that their dismissals were unfair, and half the respondants will have disappeared without a trace in the meantime.

ILW

SarEl wrote: »

The only thing that forces an employer to use a fair process (assuming the don't want to use one anyway) is that the process is what provides them with a defence at tribunal. If you cannot make a tribunal claim then there is nothing to make them do so. So it will mean that unless another law comes into play (dsicrimination for example) then the employer can dismiss you for walking on the grass on a Tuesday, and deliver the dismissal notice via a dancing troupe of elephants in tutu's... and there won't be a thing you can do about it until you have two years service. Assuming, even when you have two years service that you can afford whatever the fee will then be for lodging a claim at the (currently free) tribunal!

Depends on your definition of free. Somebody ends up paying.

SarEl

ILW wrote: »

Depends on your definition of free. Somebody ends up paying.

My definition of free is that nobody should be denied access to the law because they do not have the means to pay for that access. Nobody would ever argue that the law is without cost, or that the possession of resources doesn't impact on how "equal" you may be in the eyes of the law; without a doubt those who have access to lawyers do better than unrepresented claimants.

But here's an idea - if everyone is so concerned that the current provisions to dissuade frivolous claims don't work, why not "fine" people for bringing a frivolous claim after the tribunal has decided that, and not before?

ILW

SarEl wrote: »

But here's an idea - if everyone is so concerned that the current provisions to dissuade frivolous claims don't work, why not "fine" people for bringing a frivolous claim after the tribunal has decided that, and not before?

100% agree with you on that one, along with costs to the employer.