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Changes to employment tribunal powers from 6 April 2012

Posted on 25th February 2012
Briefing note

The first significant changes arising from government's review of employment tribunal law and practice come into effect from 6 April 2012.

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Simon Quantrill Simon
Managing Partner Telephone: 01473 688100
These changes were proposed as part of a wide range of employment law related 'reforms' announced in late November 2011. You can read our summary of the proposals at Proposed employment law changes | a mixture of the good, the bad and the ugly.

Unfair dismissal | Qualifying period increased to two years from 6 April 2012

As part of the coalition government's rolling back of employment laws, the qualifying period for unfair dismissal cases is being increased from one year to two years' continuous employment. This change will take effect on 6 April 2012. BIS have stated that this increase will only affect employees who start employment on or after this date. This means that employees who are already in employment by this date and who have accrued at least one year's continuous employment will still be able to bring a claim for unfair dismissal as now.

Unfair dismissal | Employment judges can sit alone

From 6 April 2012, unfair dismissal claims can be heard by an employment judge sitting alone. This is unless the judge considers the case should be heard by a full tribunal for one or more specific reasons as set out in section 4(5) of the Employment Tribunals Act 1996, e.g. when there is likelihood of a dispute arising on the facts which makes it desirable for the proceedings to be heard by the full tribunal; or that there is an issue of law arising which would make it desirable for a full tribunal to hear the case; or any views of any of the parties as to whether or not the proceedings ought to be heard by a full tribunal.

It is likely that employment judges will interpret the provisions of clause 4 (5) as giving them a wide discretion to retain the status quo. Having the benefit of the side members' work place experience and considering the statutory issues which arise in unfair dismissal cases is beneficial both for the employer and employees. We suggest that this change is more to do with saving money than ensuring the parties to a claim of unfair dismissal get a fair hearing.

Employment tribunal maximum deposit to be increased to £1,000

From 15 February 2012 the employment tribunal has power to order a claimant to pay a deposit of up to £1,000 before his or her case can proceed. The deposit order can be made if an employment judge considers that all or part of any claim, or an employer's response (ET3), has little reasonable prospect of success.

In practice it remains to be seen if employment judges will make use of this new limit. In our experience, when the maximum deposit was £500 it was rare for a tribunal to award this maximum. Perhaps with the new emphasis by the coalition government on reducing the number of claims judges will start to use this power with more relish. Persuading a party who has a weak claim or defence to think again and withdraw must be beneficial if it means time and costs can be saved. Time will tell!

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