The consultation paper contains two options for consideration:

Option one: an initial fee of between £150 and £250 for a claimant to begin a claim, with an additional fee of between £250 and £1250 if the claim goes to a hearing, with no limit to the maximum award; or

Option two: a single fee of between £200 and £600 – though this would limit the maximum award to £30,000 – with the option of an additional fee of £1,750 for those who seek awards above this amount.

In both options, the employment tribunal would be given the power to order the unsuccessful party to reimburse the fees paid by the successful party. At a time when employment tribunal claims are rising rapidly, the Government hopes that a fee system will encourage both sides to mediate or at least give more consideration to the strength of their case prior to launching legal action, thus saving time and (particularly) taxpayers’ money.

The Government says that introducing fees will bring employment tribunals into line with the civil courts, where claimants already pay a fee to use the service.

When the Government first mooted the idea of fees, there were concerns that those people who could not afford the fees would no longer have access to justice. Click here for more details. However, the Government has now allayed these fears, stating that it will fund a system of fee remissions (or waivers) for those who cannot afford to pay, in a similar way as the civil court system.

The consultation will close on 6 March 2012, with a view to introducing the fees in either 2013 or 2014. The date is dependent on which option the Government decides to adopt. If, following this consultation, the Government decides to implement option 1, fees would be introduced in 2013. If it decides to implement option 2 , it would require primary legislation, which would probably not be passed until 2014.

The change was initially mentioned by the Deputy Prime Minister late last month, when he unveiled a raft of new measures designed to reduce bureaucracy and restrict inspection for businesses.

Under the proposals, employers and employees could, at either’s request, have frank discussions about issues such as underperformance and retirement plans. These conversations would be inadmissible in employment tribunal proceedings.

The announcement will be welcomed by business groups, which have long called for the introduction of protected conversations as a means of informally resolving workplace disputes.

The Prime Minister also reiterated that the Government will be increasing the qualifying period for unfair dismissal claims from one year to two years from 6 April 2012. Click here for full details.

Also, from 6 April 2013, employees will have to pay £250 to apply for an employment tribunal hearing and a further £1,000 if a hearing is granted. The money will be refunded if the claimant is successful, but will be forfeited if they lose. Click here for full details. Since the announcement, the Government has said that “poor claimants” will not have to pay the fees, although we are still awaiting clarification as to how a claimant qualifies as being “poor.”

It has not yet been confirmed when the consultation on protected conversations will take place.

1. The unfair dismissal qualifying period will rise from one year to two years; and

2. Fees will be introduced for employment tribunal claims.

Since the speech, the Department for Business, Innovation and Skill (BIS) has confirmed that the change to unfair dismissal law will take effect on 6 April 2012. However, as yet, no further detail has been given. The Government claims that increasing the period to two years will help to reduce the number of unfair dismissal claims by approximately 2,000 per year, saving businesses £6m per year.

Fees for claimants lodging employment tribunal claims are expected to be introduced from 6 April 2013. The introduction of the fees are an attempt by the Government to reduce the number of “vexatious” claims which cost employers millions of pounds each year. Details of how much the fees will be set at are expected to be included in a consultation paper, due to be published by the end of November 2011. There have been reports in the press that employees will have to pay £250 to apply for a tribunal hearing, and pay a further £1,000 if a hearing is granted. The fees would be refunded if the claimant was successful. However, these are only suggested figures, and we will have to wait for the consultation paper (or further announcements from the Government) to find out for sure.

UPDATE: Since this announcement, the Government has said that “poor claimants” will not have to pay the fees, although we are still awaiting clarification as to how a claimant qualifies as being “poor.”

The High Court ruled against Amberley. The Court of Appeal (CA) has now dismissed Amberley’s appeal. The CA considered whether the parties intended to grant Amberley such a unilateral right, and noted that unilateral variation clauses are enforceable, even if they are detrimental to the other party. However, those clauses had to be clearly drafted in order to be enforceable. In this particular clause, the CA took a narrow interpretation as the wording was not clear enough for what Amberley had wanted. The CA ruled that Amberley only had the right to ‘review’ the rents as costs increased and not impose a unilateral increase. The contract gave no indication of what such a review would involve, who would perform it, how often or on what basis. The CA thought the contract meant that Amberley would conduct the review but if it wanted to increase rents following the review, it needed to get a resident’s approval before doing so.

This is an important case for businesses to be aware of. If a unilateral clause is intended, then the clause should state this specifically. Otherwise, there is a risk the courts will give the clause a narrow interpretation and rule that it is not unilateral.

1 Spec – Be absolutely clear about what you’re getting.  Have a clear specification for what the web site should have.  Make sure that covers performance issues.  Also, ensure that whatever you want to receive as a minimum is clearly documented.

2 Timing – If timing is important, have a clear timeframe for delivery.  Have incentives for early delivery and penalties (but you can’t call them “penalties” in English law) for late delivery.

3 Fees – Be absolutely clear on price.  What is it costing?  Is it on a time and materials basis, fixed fee or some other blend?  Fixed fee is better to give you certainty and avoid scope creep, although the supplier may charge more to cover contingencies.  Are expenses being charged too?  If so, what do they cover?

4 Acceptance testing – ensure you have the right to conduct user acceptance testing of the web site before it goes live to ensure it all works well.

5 Payment terms – Have a payment plan that is linked to delivery.  Have staged payments based on effort/delivery/acceptance/go-live. 

6 Remedies – Have the right to remedies if things don’t work out – either not delivered properly, not fixed, or not on time.  This may range from requiring the supplier to correct at no cost, through to terminating the contract and getting all money back (as a last resort). 

7 No tie-ins – Make sure that once the web site has been delivered, you are not locked in to the web developer’s other services – such as content maintenance, hosting or their domain name registration services.  YOU should own your domain name.  You should also ensure that you get delivery up of a fully working site (in source code as well as object code).  You should be able to make on-going changes without going back to the web developer and paying them a fee each time. 

8 IP issues – this can be a thorny one.  You would ideally own the intellectual property in the software for the website.  However, in practice, this might not happen, because (a) the web site may consist of a lot of underlying software (eg third party stuff); and (b) the supplier may be able to deliver at a good price on the basis of it being able to reuse other previous material in its library – you owning the IP will not help it to deliver cost-effectively.  At the very least, you’d need an irrevocable, perpetual licence to use everything that you need – including underlying material.  This should extend to a licence to make changes/updates in future.

9 Exclusivity – even if you don’t own the web site, you may want exclusivity so that the developer can’t use/re-write any particular functionality for your competitors for a period of time (eg 6 months) if it gives you a competitive advantage.

10 Be reasonable – a general negotiating tip that applies here would be just to be reasonable.  If you have a lot of web developers who want your business, don’t negotiate them into the ground too much.  You want them to be incentivised to help.