David Cooper: Public sector Compromise Agreements have their place - but it should be in the public eye

David Cooper is a solicitor and legal & political fiction author, and occasional blogger. Follow David on Twitter. 

Confidentiality terms in Compromise Agreements, the legal documents commonly used when an employment contract is brought to an end, have come in for heavy criticism recently. What are these “gagging clauses” all about, and might there be scope for a simple reform?

Step back just over twenty years, and we find that the right to make a claim in the Employment Tribunal was virtually sacrosanct. Employers who genuinely wanted to settle disputes could not do so without the risk of a claim, which would waste further time and costs even if the outcome for the employee might be academic or Pyrrhic. ACAS could assist up to a point in claim avoidance, but the process was cumbersome.

David Cooper: The Government must not make employment tribunals more expensive for small businesses

David Cooper is a solicitor practising in employment law and a former executive member of South Staffordshire Conservative Association.

Employment tribunals, with due respect to their role in determining workplace disputes, have burdened small business for many years. The maximum unfair dismissal award was quadrupled soon after Labour took office and now stands at £65,300. The qualifying period was reduced to one year. The torrent of EU-inspired legislation via the Social Chapter provided yet more problems – relatively easy for a major organisation with a dedicated personnel department, a nightmare for a hard pressed small business owner. And the much despised statutory disciplinary procedures with their financial uplift provisions only added to the burden, until their grudging repeal.

What a relief, then, for those who make up an integral part of the UK’s economic well being and the fightback against Labour’s recession, to hear that the Department for Business, Innovation & Skills was consulting on Resolving Workplace Disputes and how to make the UK the best place to start and grow a business, as the consultation paper’s foreword asserted. No risk, then, of any underhand stealth tax on businesses who fell foul of tribunals, as might have appealed to a particularly vindictive Brownite minister.

Or so we thought.

On page 52 of the consultation paper, described as “an astonishing proposal” in the Daily Telegraph, is a section headed “Financial Penalties”. A few extracts: -

“The Government believes that employers should take appropriate steps to ensure that they meet their obligations in respect of their employees. We therefore propose to introduce the power for Employment Tribunals to impose financial penalties on those employers found to have breached an individual’s rights.”

“There are, however, no powers available to the tribunal to penalise an employer for the original breach. Introducing such powers would allow the tribunal to send a clear message to an employer, and employers more generally, that they must ensure that they comply with their employment law obligations.”

“We propose to introduce a provision for the tribunal to levy financial penalties on employers found to have breached the relevant rights, to encourage greater compliance. Penalties would be payable to the Exchequer, rather than the claimant, providing some element of recompense for the costs incurred to the system through the employer’s failure to comply with their obligations…”

The proposal goes on to indicate that the penalty should be half the amount of the total award, subject to a cap of £5,000, reducing by 50% for prompt payment within 21 days.

David Cooper: An experience of Question Time

David Cooper recounts what it was like to be in the audience for last week's Question Time. Click here to apply to join the audience and here to suggest a panellist.

Last week I had the good fortune not only to be invited into the live Question Time audience, but also to be able to put a question to the panel about Harriet Harman’s walkabout in a stab proof vest.

Applying to go on the show may have been little more than wishful thinking at the time, after I had found out that there was to be a recording in Birmingham. The online application form simply asked a few fairly obvious questions, including political allegiance and party membership.

Three weeks passed by, then one of the producers rang on the Monday to ask if I was still interested. We went over what was topical – I mentioned Zimbabwe and MPs’ expenses, little knowing of the Labour deputy leader’s impending photo-call – and she confirmed my invitation. I was reminded that they positively encouraged audience participation, and she asked me to put in two questions, one via email by Tuesday afternoon and the other on the night.

My wife had her invitation confirmed separately and she alerted me to the Harman episode at lunchtime on Tuesday. By then there was already speculation about her fielding of this week’s PMQs. I thought about how to tie in a joke with a serious point and emailed the question over, wondering if William Hague might get in first from the very same angle. Of course the actual approach in the Commons was the all humour “clown suit to Cabinet meetings” attack, so I still had some hope of an original contribution.