Donald MacKinnon

Member Article

What is happening in employment law

Donald MacKinnon, Director of Legal Services at Law At Work comments on the current state of play in employment law.

Employment law issues have come to the fore as the coalition government grapples with the current economic woes. The latest senior Conservative to comment on the issue, Liam Fox, has questioned the need for unfair dismissal laws altogether, claiming further deregulation of the labour market is vital to the UK’s economic survival. There appears to be a view within government that such laws are unduly restrictive and act as a barrier to employers recruiting staff.

This is contentious to say the least. A recent call for evidence from the Department for Business Innovation and Skills (BIS) in March 2012 asked businesses to name the top 10 regulations deterring them from hiring staff, and unfair dismissal protection failed to make an appearance. Health & safety came top. According to the BIS survey, employment law issues that are a barrier to recruitment include maternity leave, the minimum wage and discrimination legislation; none of which is likely to be the subject of change in the near future.

The emphasis by the government on unfair dismissal law is likely to reinforce the view held by some employers - that the rules are unfairly stacked against them. But, in this writer’s experience, this is simply not the case. Unfair dismissal law provides a general framework for dealing with difficult employees and terminating their employment if necessary. Provided the employer sticks to the general principles of natural justice, for example, having hearings before reaching a decision, letting the employee see all relevant evidence etc, the employer is expected to do no more than behave reasonably in reaching a final decision.

The raising of the qualifying period to two years for claiming unfair dismissal gives employers, in theory at least, a window of opportunity to decide if an employee is suitable. Caution still needs to be exercised, however, as there are a raft of employment claims that an employee can make without any service whatsoever, including discrimination claims. Employers are well advised, if an employee is struggling in his or her role, to follow a simple, proper process before terminating employment. This will include having a paper trail showing the efforts that have been made to address any shortcomings in advance of making a decision to dismiss. A properly thought through induction and monitoring process will go a long way to providing a defence to any subsequent claims. It should be made clear to new recruits that the initial stages of employment will be subject to a probationary period and the employer should honestly assess performance during this period.

There is no reason for employment regulation to be a barrier to recruitment. Employment claims occur most often because of poor management of the employee by the business and/ or a failure to address the employee’s failings at an early stage, rather than because the law is tilted in the employee’s favour.

This was posted in Bdaily's Members' News section by Donald MacKinnon .

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