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Mary is an established member of her team, with good social and professional relationships with her co-workers. Her boss has managed the unit with a fair degree of success (neither perfect nor imperfect), and everyone knows where the boundaries are and what is expected of them.

I have looked with surprise at the debate around changing the unfair dismissal qualification period from one year to two.  Is the unfair dismissal qualifying period really what drives small businesses away from employing people?

Fear of employment law (which is used by many to sell employment law insurance) does not seem to tie in with what employment law actually says.  And, as for the change to a 2 year qualifying period, it seems that only about 1% of existing claims would have been affected by this change – not a big difference to employers.  

But employees who have struggled into new or first time employment would have a two year wait for a full set of employment rights – a very big difference for them.

So, is the “employment law problem” really driving unemployment?  I had a look through our current and recent files.

• Under one year’s service: only a small number of issues – and these are mostly related to discrimination claims (which are not affected by the changes)

With the Agency Worker Regulations (coming into force on 1st October 2011), 40 pages of Regulations have 50 pages of guidance to explain them! Even so, people can still get confused, and become convinced that they have to do things that are not required.

The long-term carer, supplied by an agency to my mother, to help look after my father has been advised by his manager that the Agency Worker Regulations means that he must swop assignments every 12 weeks.

Of course, the Regulations say nothing of the sort. And the agency’s concern, that there would be some problems if the carer was on long term assignment, is a huge misreading of the Regulations as my mother has no other employees, let alone ‘comparators’, whose terms of employment might influence what the carer’s terms should be

Sooner or later every HR practitioner is faced with the open and shut case.   A case where on the fact of it, the actions taken are so blatantly wrong that there seems little point  in taking a lot of time to decide what needs to be done.    Busy line managers can exert considerable pressure to come to a conclusion and move on.

The canny HR manager often uses employment law as a way of slowing things down and encouraging everyone to reflect.  It is much easier sometimes to say “the lawyers want us to do this” than it is to say “I think your decision may be flawed and misses some key data”.  I have had HR practitioners ring me and say “Give me a reason why we can’t make a decision today”.

When it comes to decisions on discipline and dismissal the employment law requirements for a good process are not that different to the classic good process for making a sound decision.   The problem is most of us are not good at making sound decisions – particularly when we are upset.

The UK arguably leads the world in the use of temporary workers, ‘atypical workers’ contracts and casual workers. But the European employment law framework struggles to keep up, and often attempts to ban or limit these relationships in favour of the more traditional employment model.     Pending changes on  ‘improving’ temporary employees’ rights and removing VAT inputs on temporary staff, have deformed the UK market .  In the long run, the lack of long term mutual obligation between end client and worker that  is at the heart of the British temp market may turn out to be closer to the long term model for many workplace arrangements in many sectors. The future generation of workers will not recognise the current UK employment law framework, rooted as it is on the older “master and servant” framework of the 19th century. Whilst the 19th century model has survived, w