• Robert Spicer

Employment law and procedure: a critical analysis


Currently, British employment law is a sprawling mass of statutes, regulations and decided cases. The leading textbook – Harvey – comprises 8 densely-packed looseleaf volumes. The breadth and complexity of employment laws makes them largely inaccessible to non-lawyers, and poses significant challenges to specialist employment lawyers.

  • Funding

Although fees for employment tribunal (ET) claims have been abolished (but it is rumoured that the Conservative government may seek to reintroduce them), claimants with serious employment issues face significant financial hurdles. ET claims involve lengthy and demanding preliminary procedures before the case reaches a tribunal hearing. Instructing lawyers to handle these procedures is expensive. Claimants who belong to trade unions may be supported by their union, but there is no automatic right to legal advice and representation through the union. Claimants may have legal expenses insurance cover, normally as an addition to house insurance. Such cover involves a number of procedural steps and usually includes a requirement that the case is handled by the insurer’s lawyer. This contradicts the principle that claimants are entitled to their own choice of lawyer.

  • The two-year rule

Current English employment law requires a claimant to have two years continuous employment to benefit from most statutory employment rights. This rule can have iniquitous effects. It is far from unusual for employers to dismiss workers shortly before the completion of the two-year period to avoid liability for unfair dismissal.

  • Redundancy

Redundancy, like much of employment law, is an increasingly complex concept. Its legal definition often bears little relationship with the reality of the distress, mental and physical, caused to workers who have lost their jobs. It is not unknown for employers to dispense with unwanted workers on the pretext of a fake “redundancy” accompanied by minimally acceptable financial compensation. Such false redundancies can be attacked through an application of selected decided cases from the mass of case law.

  • Employment Tribunal case management: limited scope for advocacy

The increased case management powers of the employment tribunal are part of the movement from a tribunal proper to a civil court. ET applications involve detailed and onerous preliminary procedures, subject to strict controls and deadlines. In many cases, most of the legal issues related to a case are decided in advance of the hearing. Persuasive advocacy has had its day.

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