Jeffrey Green Russell

Changes to Employment Law effective April 2009

Disciplinary and Grievance Procedures from 6 April 2009:

The Employment Act 2008 (EA 2008) came  into force on 6 April 2009 and makes several important changes to the law governing employee disciplinary and grievance procedures.

The Act will repeal the existing statutory dispute resolution procedures and gives Employment Tribunals a discretionary power to increase (or reduce) compensation awards by up to 25% should an employer (or employee) unreasonably fail to comply with the current ACAS Code of Practice on Disciplinary and Grievance Procedures.

http://www.acas.org.uk/media/pdf/l/p/CP01_1.pdf

Under the law that existed before 6 April 2009 a dismissal made without following the appropriate statutory dismissal and disciplinary procedure (DDP) was automatically unfair. This will no longer be the case. A Tribunal will now examine whether an employer acted "within the range of reasonable responses" when deciding cases where misconduct or poor performance was a reason for the dismissal of an employee. However, this should not be regarded in any way as a relaxation of the burden on employers to follow correct procedure as a Tribunal will take into account the ACAS  Codes when examining such a question and will have regard to any "unreasonable" failure to follow the Codes when looking at any compensation awards.Therefore whilst the ACAS  Code is likely to be followed as best practice by many employers now, it is worth highlighting some of the headlines from the Code to assist employers in dealing effectively with disciplinary issues and importantly to avoid the risk of unfair dismissal claims and the potential 25% increase in any awards made.

ACAS CODE steps before taking disciplinary action: 
  • Investigate all the issues.
  • Inform the employee of any case to answer (and possible consequences) in writing:  This must be in enough detail for the employee to be able to respond at a hearing.  Where appropriate include any written evidence such as statements, paper work and so on.  Written notification of any hearing must be clear and inform the employee of their statutory right to be accompanied.
  • Hold a hearing:  Explain all allegations against the employee.  Allow the employee to respond and put forward their case which should include, where reasonable, opportunities to ask questions, present evidence and even call witnesses.  Keep clear written records.
  • Give a decision in writing:  A decision must be made without unreasonable delay and given in writing to the employee.
  • The employee's right to appeal: Inform the employee in the decision letter of their right to an appeal which they must make in writing.

An appeal should be heard promptly and where possible heard by a manager who has not previously been involved in the case.

Warnings:

Under the new regime, failure to allow an employee the right to appeal any disciplinary action, which includes a warning, is a breach of the Code.

ACAS  Steps for grievance procedure

  • Employee should raise the issue in writing
  • Employer should hold a meeting to enable the employee to set out their grievance - The employee must be informed of their statutory right to be accompanied.
  • Investigate the grievance - Employers should consider that the meeting may need adjourning for a reasonable investigation of the issues and resuming once an investigation has taken place.
  • Decision in writing - A decision must be made without unreasonable delay and given in writing to the employee.
  • Employee's right to appeal - Inform the employee in the decision letter of their right to an appeal which they must make in writing.  An appeal should be heard promptly and where possible heard by a manager who has not previously been involved in the case.

Consultation with employees

The Code calls for the "involvement" of employees and representatives when developing written Grievance and Disciplinary procedures. Unhelpfully, there is little further detail or explanation of what "involvement" entails or on whether employees and any representatives such as a union need be involved. However, employers should have this in mind when developing new or existing procedures and when carrying out health checks on established procedures in light of the changes to the law.

Changes to Flexible Working Rights from 6 April 2009

In April 2009 the government will implement an extension to the right of employees to request flexible working to parents with children (or employees with parental responsibilities for a child) up to the age of 16, up from 6 as recommended by the Walsh Review in 2007. Additionally, a qualifying employee has a right to request flexible working where they have a disabled child under 18 or where a person over 18 (relative, partner, spouse or person living at the same address) is in need of care.

In order to qualify, as well as the above parental and carer responsibilities, the worker must be an employee as oppose to a self employed contractor or agency staff, must have had 26 weeks continuous employment and have made no applications for flexible working in the past 12 months.

The changes which may be applied for by a qualifying employee remain the same:
  • Change to hours.
  • Change to times required to work.
  • Change in location (which includes working from home).Grounds for an employer to refuse such requests remain unchanged, which aside from the employee not being qualified or not following the correct application procedure, must be legitimate business reasons.
The list of acceptable grounds is finite:
  • Burden of additional costs.
  • Detrimental effect on employer's ability to meet customer demand.
  • Detrimental impact on quality.
  • Detrimental impact on performance.
  • Insufficiency of work for employee during times of work applied for.
  • Inability to re-organise work.
  • Inability to recruit additional staff.

  • Planned structural changes.

Employers must themselves follow the correct procedure when handling applications and always be mindful of exposing themselves to claims for both direct or indirect discrimination under the Sex Discrimination Act 1975 as well claims under the Right To Request legislation when considering applications.

Changes to holiday allowance

From April 2009, employees are entitled to a minimum of 28 days holiday, pro rata for holiday years which start and finish at different times of the year, for example the calendar year.  As before, this can include bank and statutory holidays which may mean no increase is given to staff already entitled to a minimum of 20 days plus bank and statutory holidays.