Employment Law Alert - August 2008
News item added 20th June 2008
April 2009 may seem a long way off – but that is when so much of the law will change. We don’t yet know what all the detail will be – but the main lines of the changes are clear and the coming summer holidays might be a good time to start your planning [see some key actions below].
A quick bit of background. The statutory dispute resolution procedures introduced in 2002 to encourage employment dispute resolution in the workplace rather than in the Employment Tribunal, have by general consent been a flop. Over-prescriptive, legalistic, full of traps for the unwary, creaking grievance procedures and loads of litigation resulted. Disliked by employers and employees alike, only employment lawyers seemed to benefit. The Employment Bill, currently before Parliament, will repeal the existing procedures and coming into force in 2009, it will be accompanied by the new ACAS Code of Practice – out for consultation until 25 July.
The main impact of the new rules will be as follows:
- The statutory discipline, grievance and dismissal procedures will be abolished, along with certain related provisions.
- Tribunals will be able to increase most compensation awards by 25% if an employer has unreasonably failed to comply with the revised ACAS Code; and a reduction of 25% where the employee has unreasonably failed to comply.
- The current rule whereby a dismissal is not unfair simply because of a procedural failure, provided the employer can show that following the procedure would have made no difference to the decision to dismiss - will be removed.
- There will be a reversion to the pre-existing law: a procedural failure will render a dismissal unfair but the ET can reduce compensation to reflect the likelihood that the employer would have dismissed anyway.
- “Simple monetary claims” – eg – breach of contract; unlawful wages deductions; holiday pay; redundancy pay – will be fast-tracked before an Employment Judge sitting alone.
- ACAS conciliation powers will be extended – with additional government funding – plus a push to get more employers to consider using mediation services provided by other organisations.
The Government is also considering further changes, including:
- Simplifying tribunal forms, procedures and case management
- Beefing up the enforcement of tribunal awards
- Giving tribunals wider powers to make recommendations in discrimination cases.
The new ACAS ‘Draft Code of Practice on Discipline and Grievance’ has now been published. It is ‘concise and principles-based’ – with an Introduction, two pages on ‘Keys to handling disciplinary problems in the workplace’; one and a half pages on ‘Keys to handling grievances in the workplace’. And that’s it! But expect longer, non-statutory guidance with model grievance and disciplinary policies/procedures in good time before next April.
So, what are your key action points?
- Remember, you still have to operate within the current legal framework, for the time being.
- Watch out for the final version of the Employment Act 2008; the ACAS Code and the associated guidance, transitional provisions etc
- Review your existing policies and procedures in the light of the new rules
- Equip your HR team with the knowledge and skills they need to advise colleagues
- Re-launch your policies/procedures
- Train your line managers
According to the Minister for Employment Relations, the new rules are “…a key element in the government’s plans to streamline and simplify the dispute resolution system to the benefit of employers and employees.” That’s what they said last time. This time, they just may have got it right. Let’s hope so.
Paul Secher
Managing Director
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JSB's 2-day course Discipline, Grievances and Dismissal takes place in Central London on 18-19 August. Conducting Workplace Investigations and Hearings (also a 2-day course) takes place in London on 9-10 September. For information about JSB’s In-company training and consulting services, click here.