EMPLOYMENT LAW TRAINING AND EMPLOYMENT LAW CONSULTANCY

Section One

 

Employment Legislation - Recent Important changes and a Timetable for the coming months

April 2009
New ACAS Code replaces Statutory Discipline Procedures

Employers should be aware of the new ACAS Code of Practice on Disciplinary and Grievance Procedures. It came into effect on 6th April 2009, when the statutory dismissal and grievance procedures were abolished (Cheers all round).
A revised ACAS Guide has been published and a failure to follow this, by either party, will result in an increase (or decrease) in compensation awarded by up to 25%. However, the guide is not statutory, and a failure to follow it will not mean the dismissal is automatically unfair, as it was under the Statutory Discipline Procedure, but employment tribunals will take the Code into account when considering relevant cases.

Note though that the new ACAS Code covers Employees only (so not Agency or casual workers) and does not apply to redundancies or to the non-renewal of fixed term contracts.

The last newsletter (Autumn/Winter 2008, available from the website) contains details of a free policy download of a sample Disciplinary Policy. A new book is also available to help managers deal with all aspects of the Discipline Process. Called "The Manager's Guide to Discipline", written by Derek Eccleston and ELT Associate Kate Goschen, this very practical soft back contains many checklists and sample letters.

Published by Gower, further details are available on our website, or by going to; Gower Publishing: http://www.gowerpublishing.com/isbn/9780566088551

Employers and employees should always seek to resolve disciplinary and grievance issues in the workplace. Where this is not possible, employers and employees should consider using an independent third party to help resolve the problem. The third party need not come from outside the organisation but could be an internal mediator, so long as they are not involved in the disciplinary or grievance issue. In some cases, an external mediator might be appropriate.

Many potential disciplinary or grievance issues can be resolved informally. A quiet word is often all that is required to resolve an issue. However, where an issue cannot be resolved informally then it may be pursued formally. The ACAS Code sets out the basic requirements of fairness that will be applicable in most cases; it is intended to provide the standard of reasonable behaviour in most instances.

Employers would be well advised to keep a written record of any disciplinary or grievances cases they deal with.

Dispute Resolution Abolition - Transitional Provisions

Although the Statutory Procedures are being repealed, there are some transitional provisions for Employers to be aware of. If processes are ongoing on 6 April, the "old" Statutory arrangements may well be applicable.

According to Barrister Daniel Barnett, in a dismissal case, the old rules continue to apply if the employer has sent a step 1 letter, or held a step 2 meeting, before 6th April (or, obviously, dismissed the employee before 6th April).  So where the employer holds off doing anything until after 6th April, the statutory dismissal procedure rules are abolished and we're back to the pre-2004 position.

In a statutory grievance case (the importance being that the employee needs to have sent a step 1 letter and waited 28 days before being allowed to bring a tribunal claim), the statutory grievance procedure rules are abolished provided the action about which the employee complains occurred on or after 6th April 2009.  Where the action occurred wholly before 6th April, then the statutory grievance procedure will continue to apply. However, it gets a bit more complicated for acts that began before 6th April 2009 but continue after that date.  For such acts, for almost all types of claim (except equal pay, redundancy payments and some industrial action claims), the old statutory grievance procedure applies if the employee sends a step 1 grievance letter, or presents an ET1, by 4th July 2009. If that date passes without a step 1 letter or ET1 being sent, then the new regime applies and the statutory grievance procedure will not engage.

For equal pay, redundancy payments and some industrial action claims, the same applies except the changeover date is 4th October rather than 4th July. (Reason being that these claims can be made up to 6 months after the incident - whereas all other claims have to be in within 3 months.)

Other changes contained in the new Employment Acts

The ACAS duty to become involved.

Legislation currently sets down circumstances in which Acas officers have a duty to try to conciliate before proceedings have been brought. This duty is to be replaced by a discretion so that Acas can prioritise cases sent to it and is relieved of the obligation to offer conciliation in pre-tribunal disputes where there is no prospect of success.

Other changes under the Tribunals, Courts and Enforcement Act 2007, such as making tribunal awards and Acas-conciliated compromise agreements directly enforceable in the county court, will come into force on 1 April 2009.

The Employment Act will also allow trade unions to expel or exclude members or potential members on the ground of their political party membership, provided certain conditions are satisfied. The change comes as a result of the decision in ASLEF v United Kingdom, in which the European Court of Human Rights held that, in accordance with Article 11 on the right to freedom of association, a union must be free to choose its members, and it could therefore expel a union member who was an active member of the British National Party.

Holiday rights

Holiday rights increase to 20 days plus 8 public holidays. From 1 April, the final staged increase in statutory holiday entitlement up to 5.6 weeks (being 28 days for someone working a five or more days a week) comes into force. The transitional provisions, which allowed employers to permit staff to "buy out" the statutory days above 4.0 weeks also comes to an end. This is a domestic (UK) minimum, the European Working Time requirement remains at four weeks.

Statutory Maternity Pay

From 5 April, the standard rates of statutory maternity, paternity and adoption pay increases from £117.18 to £123.06 per week.

Statutory Sick Pay

From 5 April, the standard rate of statutory sick pay increases to £79.15, for all payments on or after 6 April 2009

Flexible Working rights

The right to request flexible working is to be extended to all parents of school age children (under 16). The Government estimates that 4.5 million working parents are likely to benefit from this extension

Tribunal Awards

 From 1 February the annual increase in tribunal award limits apply including:

Note: The new rates apply where the 'appropriate date' occurs on or after 1 February (e.g. for unfair dismissal the EDT) and not the date of the corresponding tribunal hearing.

Minimum Wage

Changes to the enforcement rules are effective 6 April, with new, stiffer penalties for Employers who underpay their employees. Normally the rates that will apply from October have been announced by now. In view of the recession, the Low Pay Unit is waiting until early May before announcing any changes to the minimum rates from October 2009.

Time off for Public Duties

Employees have certain rights to reasonable paid time off to carry out "public duties". The list of duties is being extended to cover such roles as members of probation boards and youth offender panels.

2010

Time off for Training rights

The right to request time off for training is also on the agenda. The Government launched a consultation on this new right. It is reported that one third of employers do not provide any staff training and 8 million employees go without training each year. (And this was before the recession!). The consultation closed in September 2008.

It is anticipated that the right will be similar to the rules on flexible working for family reasons (see above). The right will be for employees with 26 weeks service to request time off for training, and the employer will be under an obligation to seriously consider the request. The employer will be able to reject the request for "business reasons" - which are still to be defined. What is included though is the right for the employer to reject the request where the training has no relevance to the business. Government estimates suggest that 400,000 employees a year will make a training related request for time off.

2011??
Temporary Workers Directive - New rights for agency workers

The Government has been under pressure for some years, both at home and in Europe, to improve the rights of temporary agency workers. Progress was finally made when, on 5 December last year, the Directive on temporary agency work was published in the Official Journal of the European Union. Member States now have until 5 December 2011 to implement its provisions, which give agency workers rights equal to those of comparable permanent staff from day one of employment. In the United Kingdom the rights will not apply until after 12 weeks of employment.

The big question for many employers is: When will the Government implement the Directive? Back in May 2008, the Government stated that it hoped to introduce legislation by 2009. However, employers' groups, such as the Recruitment and Employment Confederation and the EEF, are urging the Government to make full use of the three-year implementation period. We'll have to wait and see what, if anything, happens this year.

In any event, employers should start thinking about their use of agency workers in preparation for the forthcoming changes - for example, they may want to consider using fewer agency staff or restrict assignments to less than 12 weeks or reorganise working patterns to make the most of permanent staff - for example, by using annualised hours.

48-hour working week opt-out.

It was thought that by agreeing the Temporary Workers Directive, the UK would be allowed to keep the 48 hour working week opt-out, subject to some significant new conditions, most notably an overall cap of 60 hours (65 in certain sectors) and no opt-outs permitted during the first four weeks of employment. Also, a new category of inactive on-call time would be introduced.

The European Parliament has rejected the agreement struck by the Council and is continuing to push for the ending of the opt-out in the next three years. It is important to remember that the final decision on the future of the opt-out does not rest with the Members of the European Parliament (MEPs). The matter will now go to the next stage of the European legislative process, which requires the agreement of the Council, so a period of consultation is now in progress.

Recent important changes - just in case you missed anything!

October 2008

New Minimum Wage rates

From 1 October 2008 the new minimum wage rates increased by around 3.8% to the following:

This is again above inflation, and based on a 40 hour week, takes the adult rate to just over £11,900 per annum, so do check that all workers are paid at or above the correct rate, including any casual or seasonal workers.

Maternity Rights

The contractual distinction between Ordinary Maternity Leave (OML) and Additional Maternity Leave (AML) have disappeared. The background to these amendments is that the now defunct Equal Opportunities Commission challenged the Government over the introduction of an Equal Treatment Directive. The EOC argued that the UK Regulations did not afford the protection required in the Directive, and their challenge was successful, necessitating further changes in the UK.

A woman's terms and conditions, (not remuneration,) continue to apply during OML. The effect of the Regulations is that employers who remove benefits during AML that are available during OML - such as company cars, gym membership, health insurance, etc - are likely to face claims of unlawful discrimination. This is a significant change, and likely to have cost implications for employers.

A woman's right to return to work following ordinary maternity leave remains slightly different from returning after she has taken the additional leave. A woman returning from OML is entitled to her old job back (barring redundancy/business closure etc). However, the law still recognises that a year off is a long time in business, and suitable alternative work can be offerred if it was not practicable to hold the job for this long. The alternative must be at the same location, pay, status etc, so there is not too much room for change in most organisations. 

Migrant workers

The points-based system (PBS) is the biggest shake up of the immigration system for 45 years. The aim is to help British business recruit the skills it needs from abroad and also to assure the British public that only those skilled migrants needed come to the United Kingdom. Under the points-based system, employers need a sponsor licence to bring in skilled or temporary workers from outside the European Economic Area or Switzerland. Tier Two of the new system came into effect in November. Tier Two is skilled workers with a job offer to fill gaps in United Kingdom labour force. The Borders Authority (BA) recommends that Employers who wish to recruit workers in this category have to register as a sponsor.

Employers could now face up to £10,000 fine for each illegal worker they have negligently employed. Prison sentences of up to 2 years await those who ignore the law and "knowingly" engage illegal staff.

Make sure thorough pre-employment checks are carried out on all recruits, and that periodic follow up checks are done where employment continues for any period. Avoid any suggestions of discrimination by following the same approach for all recruits, without any assumptions as to status to work in the UK. Retain good copies of all documentation used to confirm someone's immigration status - this is an important defence if documents later turn out to be false or forged. 

The renamed Borders Agency has a helpful website with checklists etc. at
http://www.ukba.homeoffice.gov.uk/

January 2009

New legislation under the Health and Safety Offences Act 2008 increased penalties and provides courts with greater sentencing powers for those who flout health and safety legislation.

The Act increases the maximum level of penalties that can be imposed by the lower courts on those who breach health and safety regulations from £5,000 to £20,000. It also increases the range of offences for which an individual can be imprisoned. The legislation, which received Royal Assent on 16 October 2008, came into force in January 2009.

DWP Minister Lord McKenzie said:

"It is generally accepted that the level of fines for some health and safety offences was too low. These changes will ensure that sentences can now be more easily set at a level to deter businesses that do not take their health and safety management responsibilities seriously and further encourage employers and others to comply with the law.

Furthermore, by extending the £20,000 maximum fine to the lower courts and making imprisonment an option, more cases will be resolved in the lower courts and justice will be faster, less costly and more efficient."

February 2009

From 1 February the annual increase in tribunal award limits apply including:

Note: The new rates apply where the 'appropriate date' occurs on or after 1 February (e.g. for unfair dismissal the EDT) and not the date of the corresponding tribunal hearing.