I have been an Employment lawyer for over twenty years both in-house and as a partner in several central London law firms. In that time Employment law has changed dramatically.
To begin with the EU vastly increased employment rights and even though we have gone through Brexit we are still bound by EU Directives such as the much disliked Acquired Rights Directive (TUPE) or the Human Rights legislation. We remain tethered to these European laws even though we have left the EU.
Of equal importance is the Equality Act 2010 which incorporates in one single act all of the different strands of discrimination and adds further new claims such as associative discrimination and discrimination arising from a protected act.
In terms of employment litigation, no longer do Employment Tribunals fulfil their original purpose of being informal venues where employees can turn up unprepared on the day of the hearing with bundles of papers and without witness statements. Employment Tribunals now follow almost the same rules as the civil courts in England and Wales. Rightly or wrongly today’s employees know their rights and it is rare for either side not to have a barrister. There are also costs consequences if either party get it wrong or abuse the system. It should also be borne in mind by employers though that Tribunals are often more generous in their attitude and interpretation towards employees. All in all defending Employment Tribunal claims can be an expensive business.
In Autumn 2022 the Bank of England has warned us to expect two years of harsh recession and financial instability with interest rates soaring meaning that the costs of borrowing money will increase significantly which has knock on effects upon investment, loans and leasehold premises.
For employers this often means looking at ways to streamline their companies whether by outsourcing or restructuring. Inevitably this will mean redundancies and other job losses or closing down altogether.
Companies often hold the view that if they are in difficulty this means that they can side-step the processes. This is untrue as a business will only escape liability if it is insolvent and has no assets. If a company needs to downsize it is always more cost efficient to conduct the process properly with clear communication networks for employees.
Transparency is key. This means not excluding affected employees from meetings and emails, and having whispered conversations behind closed doors which all create suspicion, division and rumours inevitably leading to problems within terms of employment
Some employers use the instruction to reduce headcount as an opportunity to get rid of the ‘old guard’ or underperforming employees without going through proper processes. This does not work and any attempts to side step due process will inevitably be picked up by employees’ legal representatives.
In cases of Individual terminations for senior employees or where it is necessary to strip out a layer of management this can potentially be achieved through short cuts such as ‘protected conversations or ‘without prejudice’ discussions. The rules relating to such discussions however are prescriptive and there are penalties if you get in wrong.
Employment law is no longer an area of practise to be tagged on to other areas of expertise such as Human Resources or Corporate law. There are frequent traps and complexities which must be considered and advised on by a specialist.
by Lynne Burns
the founder of LB LAW, & Collaboration Partner – The Brooke Consultancy
(photo source: IsraelAndrade / Unsplash)
Winter 2021