The introduction of new rules restricting the ability of workers to take unfair-dismissal claims to an employment tribunal has prompted a growing number to take their bosses to court instead, according to a leading employment lawyer.
In recent years, the UK Government has introduced a series of measures that have cut back on employment rights as part of its Red Tape Challenge to reduce bureaucracy and encourage business growth.
These include new rules requiring employees to have worked for a company for two years before they can claim unfair dismissal, and the introduction of fees of up to £1,200 to bring an employment tribunal claim.
The measures have contributed to a 79% fall in the number of claims being heard by employment tribunals.
However, according to Eric Gilligan, an Aberdeen-based employment partner with law firm Brodies LLP, the tightening of the rules has led a growing number of workers to take a different approach.
Rather than seeking redress at an employment tribunal, they are instead taking their bosses to court for alleged breaches of employment contracts.
In some cases, employees are seeking court orders to prevent what they claim is unwarranted disciplinary action. This trend, combined with other developments, means that employment regulation remains a significant risk to business, Mr Gilligan said.
“We have seen increased attempts to use court orders to restrain employers from committing what are argued to be breaches of employees’ contracts of employment, including an implied contractual right to fairness in the operation of disciplinary procedures,” he said.
“Unlike with an unfair-dismissal claim, employees do not have to wait two years before they can claim a breach of their employment contract.”
Mr Gilligan said “reports of the death of employment regulation have been greatly exaggerated”, adding that employers needed to pay close attention to the system still in place to protect workers.
“While there has been a significant reduction in employment protection, and the introduction of the fees regime has clearly led to an extraordinary reduction in the volume of employment tribunal claims, there remains some significant employment protection in place in the UK such as discrimination, collective redundancy and Tupe, which remain potentially expensive for employers to flout,” he said.
Mr Gilligan added that employers also needed to be aware of new measures that the UK Government intended to introduce.
“Plans to extend the right to request flexible working to all employees and new rights to shared parental leave may prove to be a new battleground for workplace disputes,” he said.
“To add to this, although the initial challenge to the fees regime has failed, the accumulating evidence that it impedes access to justice is likely to mean that the fee regime will be moderated in the near future, even if it is not abolished.
“In any event, the failure of employers to apply sound HR and employment practice is associated with poor morale, low productivity, high labour turnover and reputational damage, meaning that obtaining skilled external advice in this area is likely to remain a business-critical issue.”