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The Coalition Government is apparently considering changes to employment law – pushing the qualification period for protection against unfair dismissal up from one year to two years. While this represents a reversal of employment law changes which took effect in 1999 – taking the UK back to the position before the last Labour government – they are also considering the introduction of a fee to discourage vexatious claims.

Business representatives, such as the British Chamber of Commerce, often suggest current arrangements are too one-sided – soft on employees – causing huge expense for employers in defending cases. Deregulation in this area will boost jobs, they say, though the TUC express the view that increasing burdens on dismissed employees would be objectionable – preventing people from bringing legitimate claims.

The TUC also reject the idea employment tribunal cases are running out of control, reporting a 14% rise in individual claims during 2009/10 – a figure which, in the context of the economic slowdown and resulting job losses doesn’t sound too alarming.

While the idea of making changes which are “pro-business” seems sensible, comments on Laurie Anstis’ Work/Life/Law blog suggest there are plenty of pragmatists out there who think the impact of such a change is likely to be marginal and many concerns it will simply encourage employers to act sloppily.

The BBC investigation last year provides interesting facts and some balanced perspectives – especially the points that employers need not deploy expensive legal representation to handle tribunals and that half of cases defended by employers in 2009 were won (though this seems like a case of a glass half full?).

So is a change in the law going to have an impact?

The myth that employment law makes it impossible to tackle poor performance, misconduct and unacceptable attendance needs to be routinely challenged. Of course, local policy and procedures are sometimes overly-”byzantine”, written in a way that can dissuade managers from digesting its complexity, preventing them from seeking advice and taking action. There are also times when HR practitioners seem more intent on eliminating risk than helping managers tackle problems in the workplace with team members who are a real cause for concern.

Where there is a problem, it’s commonly linked to a lack of effective management attention that lies at its root. Line managers believe tackling employee relations issues will be very hard, anticipating major hurdles – creating imaginary obstacles even before they seek advice from human resources or look at the local policy and procedures for resolving issues.

As Steve Toft pointed out in his Guardian article, people naturally tend to shy away from confrontational conversations with team members. People don’t like conflict and are mostly reluctant to cause such conflict. The management myth “It’s too hard to sack people” reinforce this reluctance to take action. Normally, once managers and HR practitioners agree an individual case needs action, there are straightforward steps that need to be taken. It really needn’t be too hard – while the details vary depending on particular circumstances, the law requires employers to act “reasonably” in drawing together evidence and their conclusions, following a procedure which ensures the employee is treated fairly -

• Being informed of problems in writing,
• Having an opportunity to discuss matters in a meeting,
• Being informed of decisions in writing,
• Provided with a right of appeal.

The Chartered Institute of Personnel and Development (CIPD) published a report in 2010 suggesting public sector managers were more reluctant to tackle poor performers. This revealed public sector organisations average one formal disciplinary case per 364 employees each year, compared with one disciplinary case per 119 employees among private services employers and one disciplinary case per 72 employees among manufacturing and production organisations. Public services employers also spend longer dealing with formal disciplinary and grievance cases, averaging 21 days of management time on every formal disciplinary case (11.5 days for private services organisations) and 12 days on every grievance case (6.7 days for private services employers).

These statistics, in themselves, don’t reliably indicate poorer performance in the public sector. Public sector organisations typically have more complex policy than private services and manufacturing counterparts – sometimes because the culture is different but also, in part, because working environments are more complicated. On balance, public services have a larger proportion of their workforce to whom professional standards will apply. Special rules for particular professional groups are always going to be more challenging for employers.

Determining whether a social worker, a surgeon or a teacher has followed professional guidelines, made balanced judgements and acted appropriately is more difficult than deciding if a person has stolen from the employer. It can also be more difficult to link action or inaction to outcomcs in a “cause and effect” relationship. Where the rules give more protection to such people – reflecting these factors – a greater level of care and preparation will always be required when considering action.

It is possible for organisations to judge whether employee relations matters are being managed well overall – it’s just that comparisons with manufacturing and services are not especially useful.

As reported in the BBC investigation, Gary Walker, a former hospital chief executive, said moving people sideways instead of sacking them is incredibly common. Those working with public sector organisations will be aware that such strategies are sometimes used when handling problems with very senior managers and professional groups – though this is probably less of an issue than getting “management action” to take place generally.

In the private sector of course such difficult and complex cases are often drawn to a close with a large pay out and a compromise agreement- an approach that is used in the public sector but is far less common - and this will change the balance of statistics of both private and public sectors in all the measures covered by the CIPD.