Law: Our learned friend - `Driver, take me to my employment tribunal'

WITH CHRISTMAS but a whisker away, and talk of recession following close behind, employers may be forgiven for wondering how things are likely to get worse in terms of increased obligations to employees. There has already been a plethora of legislation this year, and next year promises to be just as busy. So what can employers do now to lessen the blow?

The Fairness at Work White Paper has raised the spectre of uncapped compensation for unfair dismissal. If the cap is totally removed, dismissing staff unfairly in areas of high unemployment could be an expensive business. With a current cap on the compensatory element of an unfair dismissal award at pounds 12,000, unfair dismissal has been an irrelevance for highly paid executives. Despite enormous pay packets, such executives have either no written contract, or one that gives them little protection. If the cap on unfair dismissal goes, the chauffeur-driven Mercedes could be turning up at the employment tribunal.

There has also been a rumour that not only will the cap be lifted, but the qualifying period will be removed, too, meaning that as soon as employees walk through the door, they could have unfair dismissal rights. Employers should therefore spend more time at the recruitment stage getting the right staff. Where employers have unsatisfactory staff already, they should act now. If they dismiss staff before the cap has been removed, then if they do fall foul of the unfair dismissal legislation they will not lose their shirts in unfair dismissal compensation.

For employees, the advice must be that they should be models of flexibility and diligence, at least until the cap has been removed. Employees who object to working in excess of 48 hours or forgoing their rest break may have to bite their lips for a couple of months, and give their consent. Once the new law is in place, they can then safely withdraw their consent to work more than 48 hours, and woe betide any employer who goes straight for the P45.

Employers who fear compulsory recognition should embrace unions now. But not just one - they should welcome all the unions they can think of. In order for a union to get recognition, it will have to show that a significant number of employees are members. If no one union can do this - because half a dozen are all represented - none of them will get recognition. (Of course, the unions are no doubt going to get wise to this tactic, and are likely to try to reach pacts with fellow unions to avoid such manipulation.)

Human resource managers should appreciate that much of what they do may not remain secret for ever. The Data Protection Act 1998 means that all employees will soon be able to get access to the manual records held on them. Where employers want to keep highly sensitive information on their employees, they will have to obtain express consent from the individuals concerned, otherwise the records they hold will be illegal.

Employers should also by now have put in place a whistle-blowers policy, in readiness for the Public Interest Disclosure Act 1998. If no policy is in place, the first time an employer may discover that there is a safety issue is when the Health and Safety Executive pays a visit.

For employees, this era of change is not all good news. The National Minimum Wage should kick in in April 1999. The rate for those aged 26 or over is pounds 3.60 an hour, and for those below age 26 and over 18 it is pounds 3 (with pounds 3.20 for those in training). Employers in low-paid, low-skill industries may start sacking their older employees now in favour of their cheaper younger rivals, so that when the change does come in, they are not forced to give everyone pay increases.

The Fairness at Work proposals should give better protection to employees. But before they are implemented, many employees could find that they have been dispensed with along the way. The advice must be to learn every skill that they can. That way, if an employer does have to dismiss staff, those who can turn their hand to a number of different activities will find it easier to get another job. No doubt this Christmas, Santa can expect a flood of letters asking for multi-skilling stocking-fillers.

The writer is the head of employment law at the city solicitors DJ Freeman

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