From 6 April 2009 the statutory dispute resolution procedures (i.e. the procedures dealing with disciplinary hearings, dismissals and grievances) will be abolished. They will be replaced by a new power for employment tribunals to increase or reduce tribunal awards by up to 25 per cent for failure to follow the new ACAS Code of Practice on Discipline and Grievance (the Code).

The Code is designed to allow employer and employees a more flexible approach to disciplinary and grievance issues by setting out the principles of what both employer and employee should do to achieve a reasonable standard of behaviour. Unlike the 2004 Code, it does not require employers and employees to follow mandatory steps in the process.

Employment tribunals will take the Code into account when considering relevant cases. The tribunal will consider whether a failure to follow the Code was unreasonable, taking into account factors such as size, resources, etc. If a tribunal decides that a failure, by either the employer or the employee, to follow the code as unreasonable it will have the power to adjust any award up or down by up to 25%

Key points to Note:

• There will no longer be an obligation to follow mandatory dispute resolution procedure. This means that a dismissal will not be automatically unfair where there has been a failure to do so.
• The Code sets down minimum standards for dealing with disciplinary and grievance issues. Employers with greater resources will be expected to meet higher standards when conducting disciplinaries and grievances.
• The Code and guidance are not legally binding, so a failure to follow them will not have legal sanctions.
• If a tribunal considers that an employer or employee has unreasonably failed to follow the Code, it may adjust the compensation awarded by up to 25%.
• Employees will not have to bring a grievance before submitting a tribunal claim.
• Parties are urged to resolve disputes informally at the earliest possible opportunity. Where problems are not resolved using internal procedures, employers should consider using an independent third party to help (e.g. mediation or pre-claim conciliation).

Transition Period

The statutory procedures will be repealed from 6 April 2009 this means there will be a transition period during which they will work in parallel with the new Code regime.

The date of a ‘trigger’ event will be used to decide whether the new or old regime will apply:
If the trigger date is on or after the 6 April 2009, the new regime will apply.
If the trigger date is on or before the 5 April 2009, the old regime will apply.

Dismissals  and Disciplinary issues

The date of the trigger event will be the date when the employer has started action against the employee. This may be the date when the employee received a letter explaining disciplinary action is being considered or , in the absence of a letter, a meeting at which the matter was raised. If neither of these steps were taken then the trigger would be the date on which the disciplinary action, including dismissal, was taken.

Grievance  issues

In the case of a grievance issue, the trigger date will be the date of the action about which the employee complains( even if the action continues beyond this date).

If the action, about which the employee complains, begins on or before the 5 April 2009 and continues beyond that date, the pre 6 April 2009 regime will still apply, subject to final cut off dates as follows:

• The employee makes a claim to an employment tribunal in relation to that grievance on or before the 4 July 2009 (e.g. for discrimination cases) or in the case of an equal pay or redundancy claim, 4 October 2009.

Tens of millions of working days are lost each year, due sickness
absence, so there’s no wonder that employers are on the look out
for ways of reducing direct and associated costs.

Good employers always want the right balance between reducing
unnecessary sickness absences and supporting genuine employees
needs. Effective management of sickness absence is even more
important in light of the recent European Court of Justice (ECJ)
ruling in Stringer and others v HM Revenue and Customs. Now those
on sickness absence are now entitled to accrue annual leave and
carry forward any untaken leave into the next holiday year. In
addition, if they haven’t had the chance to take accrued holiday by
the time their employment terminates, they are entitled upon
termination to payment in lieu of their unused holiday.

Good sickness management sounds great, but where do you start?

An effective sickness policy should be your priority, which sets
out clearly the process for reporting, monitoring and managing
absences.

An obligation to personally report absences by telephone is a must
- allowing the use of texts and e-mail encourages a ‘detached’
attitude to the reality of taking a ‘sickie’.

All employers owe their employees a duty of care and monitoring
sickness absence can be one step that employers can take to fulfill
this obligation, ensuring that they have employees that are fit and
able to carry out their work. An effective monitoring process can
also help to manage an absence, before it becomes a major problem.

Return to work interviews, form an important role in proactively
managing absences. It’s important that they are carried out as soon
as possible upon return to work and are used in conjunction with
fully completed self-certification forms, for absences that last
less than 7 days. Interviews provide the opportunity to confirm
that employees are fit to return to work and to understand the
underlying reason why an employee might be prone to certain
conditions. Evidence also shows that back to work interviews reduce
short term absences and can give companies the opportunity to
identify underlying organisational issues, such as work related
stress and bullying.

Obtaining up-to-date medical reports from the employee’s GP is a
vital first step in assessing the nature and seriousness of any
short term and long-term illness. Crucially this can help detect if
the employee could be classed as disabled in accordance with the
Disability and Discrimination Act 1995. If found to be the case,
the employer has an obligation to consider if reasonable
adjustments can be made to help the employee return to work.

Medical evidence and consultation with the employee at this stage
is also crucial as it can indicate if the employee is capable of
returning to their role and may help support an employers decision
to dismiss on grounds of capability, but this option should always
be the last resort and other options such as alternative employment
should always be considered first.

Deminos can look over, check and update all of your policies, and
provide advice on all aspects of employment law.

All of our advice is Guaranteed – backed by our £1 million of
Employment Tribunal Indemnity. This cover provides full legal
representation as well as any Tribunal payouts awarded.

For further information, call us now on 020 7873 2429.

We are expecting the current economic downturn to slow the pace of employment law changes during 2009.

But there is still plenty that you need to be aware of. Watch out for these upcoming changes:

1 February 2009

• Limits that apply to certain employment tribunal awards and to other amounts payable under employment legislation will increase. For example, the maximum amount of a ‘week’s pay’ (used for calculating an unfair dismissal basic award and statutory redundancy payments) will increase from £330 to £350.

1 April 2009

• The statutory minimum holiday entitlement increases from 4.8 weeks to 5.6 weeks.

5 April 2009

• The standard weekly rate of statutory maternity pay (SMP) and the weekly rates of statutory paternity pay (SPP) and statutory adoption pay (SAP) will increase from £117.18 to £123.06.

6 April 2009

• The weekly rate of statutory sick pay (SSP) will increase from £75.40 to £79.15.
• The lower earnings limit for qualifying for SMP, SPP, SAP and SSP will increase from £90.00 to £95.00 per week.
• The statutory disciplinary and dismissal procedures (DDP) and statutory grievance procedures (GP) and the current ACAS Code of Practice on Disciplinary and Grievance Procedures are being abolished by the Employment Act 2008, to be replaced with a ‘lighter touch’ non-statutory regime based on a brand new ACAS Code of Practice.
• The various other provisions of the Employment Act 2008 will come into force, including changes to: enforcement of the national minimum wage (NMW), trade union membership law and ACAS conciliation.
• The right to request flexible working will be extended to parents of children up to the age of 16.
• The right to time off work for public duties is being extended to employees in a wider range of civic roles.

1 August 2009

• Trainee doctors will be subject to a weekly working limit of 48 hours.

1 October 2009

• Subject to prevailing economic conditions and the recommendations of the Low Pay Commission, the national minimum wage (NMW) may rise from 1 October 2009. In addition, the government is proposing to amend the legislation to prevent employers from using tips and service charges to top up employees’ pay to meet the NMW, but the date of implementation of this is not yet known.

12 October 2009

• The Safeguarding Vulnerable Groups Act 2006 will introduce a centralised vetting system for employees and will create a single list of people banned from working with children and vulnerable adults. Penalties will be imposed on employers who fail to make the necessary checks.

Deminos make sure that all your employment contracts, policies and procedures are compliant with these and other new developments in employment legislation by providing your business with a virtual HR Department.

All of our advice is Guaranteed – backed by our £1 million of Employment Tribunal Indemnity. This cover provides full legal representation as well as any Tribunal awards.

For further information contact us now at the Gateshead office on 0191 460 1111 or our London office on 020 7873 2429.