If you run a business, the latest employment law changes affect you. Following the Dispute Resolution Review (DRR), the government is changing the way businesses deal with problems.
The 2004 Dispute Resolution Regulations meant changes to employment law. Now, effective April 6, 2009, employment disputes, and the legal framework devised to resolve them, have changed again, as the Employment Act 2008 comes into force. As a result, the Employment Act 2002, (Dispute Resolution) Regulations 2004 and relevant provisions of the Employment Act 2002 -- which laid out mandatory three-step processes to be followed in the workplace for disciplinary and dismissal procedures raised by an employer and grievances raised by an employee -- have been repealed.
The new arrangements mean the dispute resoultion system should be easier to use, and should enable disputes to be resolved earlier, with less lost time, expense and stress for all parties.
Despite how it may initially appear, these regulations are not about dealing with strikes and industrial disputes – they are aimed at handling issues between individual employees and their employer and are important considerations for all businesses.
As part of the DRR, Acas revised its code of practice. If you want to make sure you resolve grievance and disciplinary cases in the most painless (and proper manner), Acas has made it easy. The new principles are set out in an easy to use, non-statutory guide. The Acas code of practice on disciplinary and grievance procedures, launched on April 6 2009, can be found here.
The new variety of employment tribunal will consider whether a failure to follow the Acas code was reasonable or not, and take into account factors such as the size of the business. The tribunal will also have discretion to adjust awards up or down between 0 and 25% in relation to the level of compliance of either party.
However, the pre-6th April 2009 regime will continue to apply to cases where the 'trigger event' which sparked tribunal action occured prior to 6 April 2009. Any claims such as these will be assessed throughout the case against the pre-6th April 2009 regime which involved a formal three-step procedure, with adjustments for procedural unfairness in the 10 - 50% range and automatic unfair dismissal for non-compliance with the statutory procedures.
Derek Kemp of Liquid HR explains why and what you need to do to stay on the right side of the law for pre-6th April 2009 cases.
It has long been the requirement for organisations to have a fair procedure for dealing with conduct and capability issues in the workplace. However, in the past each case was judged on its own merits. Case law and codes of practice such as the Acas code have given organisations a good indication regarding what would be regarded as a fair process. All of this changed with the DRR.
All businesses should now develop, publicise and implement mandatory procedures in all of these areas: Contracts of Employment, Discipline, Grievance, Temporary Employees, Redundancies.
If these are not applied in every circumstance employers are automatically guilty of unfair dismissal – whereby Employment Tribunals will award a minimum of four weeks pay and increase any award of compensation by up to 50%. The Tribunal will not have the flexibility to listen to any excuses about not following the minimum requirements of the law.
The minimum award of 4 weeks’ pay will apply even if the employer has a good and fair reason to dismiss, but has simply not followed the correct process, or written the correct letter.
As a result, all employers need to take action to review their policies and procedures now.
With the rapidly rising number of claims going to Employment Tribunals the government is introducing these regulations to encourage employers and employees to resolve their differences between themselves, with the tribunal system being used by an employee only as a last resort. The fear among employers is that, in reality, they will give another opportunity for claims to be made and cases to be won on a ‘technicality’.
Unfortunately these regulations are being added to those currently in place, thereby complicating this difficult area rather than simplifying the processes.