Many people have wondered why the TUC Leadership has said virtually nothing about the Employment Act 2002 and the Employment Tribunals (Constitution & Rules of Procedure) Regulations 2001, SI 2001/1171.

At a Conference on Tuesday 21st January, Professor Bob Hepple QC let the cat out of the bag. TUC leaders had done a deal. In return for minor concessions in Parts 1&4 of the Act on ‘family friendly rights’, which New Labour wanted anyway as part of their new, flexible workforce. They gave a nod and a wink to New Labour to continue with its dismantling of the right of workers to obtain redress from Tribunals. Despite leading bureaucrat Tony Dubbins of the GPMU immediately denying a done deal, it is quite clear that this is exactly what the TUC leadership and right-wing union leaders have done.

The 2001 Regulations introduce a costs regime, thus undermining the whole point of the Tribunals, viz. that they were a relatively inexpensive and informal means of workers obtaining redress. Of course employers regularly hire counsel to protect them against unrepresented workers. Now employees with a ‘misconceived’ claim could be landed with £10,000 costs.

The Employment Act 2002 takes this a step further. Now not only Applicants, but their representatives face costs order under s.22 if they have behaved ‘unreasonably’!!

Even more worrying is that one of the few House of Lords decisions, in Polkey 1987, has been statutorily reversed (s.32(2)(2). Polkey basically said that if an Employer ignored his basic procedures or natural justice then the dismissal was automatically unfair. New Labour’s new clause states that if the employer would have dismissed someone anyway then the dismissal will be fair. Not for nothing is it known as the ‘bastards’ clause because under the ‘reasonable responses’ test, if most employers behave like bastards then the employer’s actions will fit into the range of reasonable responses.

Other measures include a Statutory minimimum disciplinary and grievance procedure being written into all contracts of employment, which might seem fair but is a major step backwards, because it essentially renders null and void the ACAS Code on Disciplinary and Grievance Procedures which includes basic principles of natural justice and the rights of employees. Now a minimum procedure will be enough to dismiss, even though the worker concerned may be wholly innocent of wrongdoing.

This is also coupled with provisions that not only prevent workers presenting grievances to tribunals within a month of submitting a grievance (leading to more cases being ‘out of time’) but under s.32 can be prevented from submitting a complaint to Tribunal at all. Under s.31, a worker who hasn’t appealed against an employer’s decision to dismiss or not pay e.g. holiday pay, will lose between 10% and 50% of their award, even if they win.

Some of us wondered why the TUC did nothing about New Labour’s dismantling of rights of access to Tribunals. No briefing papers, no campaigns, no pressure, no nothing to one of the few rights which even the Tories left alone. Patricia Hewitt (ex-consultant at Arthur Anderson!) at the DTI has done her best to ‘reform’ Tribunals after CBI pressure. The DTI estimate that 30,00-40,000 complaints to Tribunals will now be barred or prevented, i.e. about a quarter to one-third.