It takes time for reforms to "bed in" before you can assess their impact. The question is - have these reforms achieved a fairer balance between the rights of workers and the reasonable needs of the average employer to effectively run its organisation?
Workers' rights have significantly improved in the last couple of decades- largely driven by the European Union from which much of our domestic law now emanates. However, there are still areas where major improvements are required. For example, equal pay law has not achieved the desired result of forcing sufficient changes in behaviour. This is still a "work in progress" for certain sectors as is the need to break the glass ceiling which is being tackled at board level.
It seems to me that there are three main components which influence whether the pendulum of power has swung in favour of the employer rather than the workforce.
Firstly, there are the legal rights which workers can exercise. These have greatly increased. For example from 30 June 2014 all employees with 26 weeks service will have the right to apply for flexible working and that is to be welcomed.
Secondly, the rights which workers are given must be capable of being effectively enforced. This is currently the subject of great debate following the introduction of Tribunal Fees and the estimated 79% reduction in Tribunal claims between October and December 2013. This has led to calls for likely reform to redress the balance.
Thirdly, one also has to consider the economic background against which employees may push to try and improve their rights or seek to resist adverse changes. For example, unionised employees appear to be more prepared to share the pain (in terms of accepting reduced pay) simply to keep their jobs rather than to resort to industrial action and contest matters to the bitter end. Recent examples include the union's decision to accept the management's proposals to end the dispute with Ineos at the Grangemouth Oil refinery. Likewise in the public sector the unions at Stirling Council advised members to accept reduced terms rather than lose their jobs.
The government's spate of recent reforms has been welcomed by employers. A good example is the reduction in the minimum period that an employer requires to collectively consult with appropriate representatives for redundancy purposes from 90 to 45 days when there is a proposal to dismiss 100 or more employees. The reduction in the consultation period seems reasonable.
However, some other employer friendly reforms appear more difficult to justify. For example, the two years' service that an employee requires to have to bring a normal unfair dismissal claim if he or she was employed after 6 April 2012. This was the law before 1997 although it had started life as a six month time limit that equated to most employers' trial periods. Even increasing this to one year provided a cushion for the employer who has not paid close attention to dealing with underperformers at an early stage. I believe the one year rule was a "fair" balance. There is no qualifying period of service required to bring discrimination claims. This is necessary to give pre-employment protection. However it does seem inconsistent to deny an employee with nearly 2 years' service the right to claim unfair dismissal if an individual with no service can claim discrimination.
Likewise the cap on unfair dismissal compensation appears hard to justify. A claimant has a maximum claim of the lower of one year's gross salary or £76,574. Employees should be compensated for their actual loss as determined by the Tribunal. There is no such cap for discrimination claims. The potential "losers" are highly paid employees and/or those who were members of final salary pension schemes as they are the employees most likely to exceed the cap. Admittedly the number of cases will be small but that does not detract from the fact that such employees are arguably being denied an effective remedy.
Space does not permit an analysis of all of the recent and pending reforms. However, it does enable me to answer the question posed at the outset. I do not consider that the current employment law system is overly "employee friendly". I do believe that recent reforms have redressed the balance so much so that most employers (especially larger ones) can have little ground for complaint. Indeed if the Tribunal statistics continue to show that many workers with legitimate claims will be denied access to a large body of rights because of high Tribunal fees then the pendulum of power could be said to have started to swing in favour of the employer.
