As from 25 June 2013, disclosures must now be made "in the public interest" but need not be made in "good faith", in order to qualify for protection. However, workers who make disclosures not in good faith face a reduction of up to 25% in any compensation awarded.
The rules also introduce the concept of vicarious liability in relation to whistleblowing. Where an individual is subjected to detriment by a co-worker thanks to their 'blowing the whistle', such detriment can be treated as also being done by the employer, regardless of whether the employer approved or even knew about such detriment. There will be a statutory defence for employers who can show that they took reasonable steps to prevent the victimisation.
Employees no longer have to have acquired two years' continuous service before being able to bring a claim for unfair dismissal, where their dismissal was related to their political opinion or affiliation. However such dismissals will not be "automatically unfair".
After much debate, the concept of 'caste discrimination' has also been introduced. As yet the rules simply allow the government to easily amend existing legislation to prohibit discrimination on the grounds of caste in the future, whenever that might be. There seems to be no hurry to do this.
July 2013 Changes
29 July is a key date for employment law changes. From this date:
- Claimants will have to pay fees to have their claims accepted and heard by the Employment Tribunals. The fee level will depend on the claim.
- There will be a power for Tribunals to reject ET1s if the claims appear to be an abuse of process or the Tribunals have no jurisdiction to hear them.
- Respondents can apply for extensions to the deadline to submit a response even after that deadline has passed, with no automatic default judgment being issued if a response has not been received on time;
- There will be a "sift" stage once the claim has been accepted. The Employment Judge will consider whether the claim or response have any reasonable prospects of success and whether the Tribunal has jurisdiction to hear the claim. If not, the claim or response can be struck out (in whole or in part) at this stage;
- Case Management Discussions (CMDs) and Pre-Hearing Reviews (PHRs) will be replaced with one single preliminary hearing where procedural and substantive preliminary matters can be addressed;
- Greater powers for Employment Judges to run final hearings as they see fit, including setting strict timetables limiting the length of witness evidence.
- Judges will be able to consider all costs applications, even those above £20,000 (which currently have to be sent to the County Court for assessment).
- Parties will be unable to use "pre-termination negotiations" as evidence in ordinary unfair dismissal cases (unless there are allegations of 'improper conduct').
- A new cap on the compensatory award for unfair dismissal claims will be introduced. Any dismissals made from that date onwards which are found to be unfair will be subject to a cap on any compensatory award of £74,200, or 52 weeks' pay, whichever is the lower. The cap will not apply to whistleblowing or discrimination claims.
- "Compromise agreements" and "compromise contracts" will be known as "settlement agreements"
It will be interesting to see how all this works in practice.
- Will limiting witness evidence give rise to more appeals?
- Will costs orders be made if an ET1 or ET3 has safely made it through the sift process?
- How will the sift process work in practice, will it affect unrepresented claimants disproportionately?
- Will the cap on the compensatory limit lead to more claimants making spurious discrimination claims? Will the new pre termination discussions lead to a higher number of disputes?
- What will the tribunal do if improper conduct is alleged?
- How will the tribunal deal with such conversations where there is a mixed claim for unfair dismissal and discrimination?
Employment law is highly political. Most new governments tinker with the rules, sometimes with fairly disastrous consequences, (statutory disciplinary and dismissal procedures anybody?). It will be interesting to see how these reforms work in practice.
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