Employment Act 2008
6th April 2009 has brought the much heralded repeal of the statutory process for managing discipline and grievance but before we examine how that change will affect HR professionals, let us give you a quick reminder of other changes to legislation that may have become lost in the excitement.
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From 13 January 2009 there are new powers attached to the enforcement of the National Minimum Wage (NMW) which include the right of officers to inspect and copy records – a rise in the penalties for not paying NMW will follow shortly.
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Also from 13 January 2009 the rules around the reimbursement of expenses to voluntary workers have changed which means that voluntary workers can recoup expenses without the danger of triggering a position which makes them eligible for the National Minimum Wage.
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From 6 April the right to request flexible working for parents/guardians of children is extended to those with children under the age of 16.
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From 6th April holiday entitlement becomes 5.6 weeks for all workers.
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From 6th April the right to time off for public duties will be extended to some public duties not previously covered.
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From 6th April in unlawful deduction of wages or redundancy payment cases, tribunals’ powers will be extended so that they can award an additional amount to fully compensate the employee for any financial loss they have incurred as a result of not receiving the original payment from their employer.
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Currently all Tribunal cases are heard by a ET Chairman sitting alone or with a full panel. In future, tribunals will be able to determine proceedings without a hearing in cases where all parties consent in writing or where the respondent has presented no response.
Our March and May Newsletter will cover this in detail and touch on those changes to come in October, which are likely to include the right to request time off for training.
From 6th April a dismissal will no longer be automatically unfair where there has been a breach of procedure. Although the 3-Step procedure will no longer be statutory it remains best practice and is a key element of the Acas Code of Practice – and failure to comply with the Acas Code of Practice may bring an increase of up to 25% in any compensation awarded by an Employment Tribunal to an applicant in a successful unfair dismissal claim.
Remember Polkey –v- A E Dayton (1988) ? All the uncertainties as to whether this case law still held good are swept away. The House of Lords decision twenty years ago should once again come to the fore and for those of you who have forgotten about Polkey, it holds that although a dismissal can be unfair on procedural grounds alone, a tribunal will be able to reduce or eliminate the compensation payable to reflect the likelihood that the dismissal would have gone ahead anyway had a fair procedure been followed. This is extremely good news!
Fixed period conciliation by Acas is also repealed and conciliation will be able to take place right up to the steps of the Tribunal and beyond. Acas has been funded to expand its conciliation beyond its current obligation and will in future try to help in situations where an application to Tribunal is at the ‘possibility’ stage.
These are often situations where mediation can be an extremely effective process and Cullen Scholefield offers the services of an accredited mediator before the Employment Act comes into force.
The good news is perhaps tinged with less good news. With the repeal of the statutory procedures comes the opportunity for individuals to make application to an Employment Tribunal (ET) without having exhausted the internal procedures. So the ‘out-of-the-blue-ET1’ once more becomes a reality. Of course, such an applicant will risk a reduction is ET compensation if they fail to follow procedure and it remains to be seen as to whether Tribunals apply that principle as a norm.
Organisations often focus on getting the disciplinary process right as the spectre of unfair dismissal claims is clear; getting the grievance process right can become a poor relation. Yet listening to, and more importantly investigating and acting on, grievances enables an organisation to hear about and deal with harassment, bullying, equal pay issues to name but a few examples. Failure to do so reduces employee engagement and can lead to extremely expensive Tribunal claims where compensation may be uncapped.
Acas tell us that the most difficult Employment Tribunal claims to settle in conciliation are those which fall under the unfair deduction of wages heading; failure to pay outstanding annual leave following a resignation or dismissal for example. In the past, an Employment Tribunal has only been able to award the outstanding monies, now Tribunals will be able to award additional compensation such as incurred bank charges or interest; perhaps even the cost of pursuing the claim. This is going to be an interesting space to watch !
In addition to those Cullen Scholefield services with which you are familiar, we are able to offer you health checks on your policies, procedures and staff handbooks and, of course, development of those documents if required.
If you would like a Word version of this article or just like to chat to us please contact us.
