No Fault-Liability Not New

The National Head of Employment at Irwin Mitchell has described the Beecroft Report as irrelevant and has warned that some of the recommendations would be of breach of the UK’s EU legal obligations.

Tom Flanagan, Partner at national law firm Irwin Mitchell, said: “The new ‘furore’ over further leaks from the Beecroft Report seems to have led to its release four days earlier than planned. The whole issue is a little overblown.

“This is the same Report, drafted in October 2011, which caused the last ‘furore’ when selected details were released then, ahead of Vince Cable’s speech on the then current state of the Employment Law Review.

“This is now a little old hat. Some of the Beecroft recommendations are now part of the core Employment Law Review but subject to various stages of calls for evidence or consultation, such as the suggested reduction from 90 days to 30 days of the period for consultation on larger collective redundancies. The results of a Call for Evidence on this issue are being considered.

“Others would be in breach of the UK’s Community obligations and Beecroft includes the suggestion that the UK Government should simply ignore Community obligations and risk infraction proceedings from the European Commission or lobby the Commission to change the relevant Directive – such as the perceived need to change TUPE, particularly in relation to outsourcing. These are hardly rapid routes to stability and growth. In any event, BIS is slow tracking the Call for Evidence on TUPE, as compared to the one on Collective Redundancy, because there seems to be little appetite among business for yet more tinkering with the TUPE Regulations.”

Discussing the proposal of ‘no fault liability’, Mr. Flanagan added:

“The most potentially confrontational issue is the so-called ‘no fault liability’ for unfair dismissal, designed to allow employers to dismiss non-performing employees more easily and less expensively. This is not a new concept, globally, if new to the UK. If the ‘no fault’ element were to be translated into removal of unnecessary process but preserving employee rights, then it would appear less repugnant.

“The Government is looking, already, at the concept of ’protected conversations’, along with a streamlined process, which does not wholly remove employment rights and these ideas are included in the March 2012 Call for Evidence on the issue.

“Meanwhile, the real solution to under performing employees is to have an efficient and properly managed performance management process – something at which, generally, UK business does not excel. The purpose of such a process is, essentially, to help employees to improve performance, not to create an aggressive exit strategy. However, if employees do not improve in such a regime then it is not at all difficult to justify their dismissal – it just needs to be done properly.

“There is virtually nothing new in this seven month old document, the Employment Law Review has taken anything of value out of it already and the apparently most extreme issue of no fault liability is already part of a wider Call for Evidence. Let us not become too exercised over something which was a stepping stone. We should be focussing on the responses to the existing consultation processes and moving forward, not backward.”