Employment law has become a minefield for the unwary. Twice a year, in April and October, employers and employees have to grapple with legal changes and employers should consider the extent to which their policies or procedures need updating to reflect them, otherwise they could be heading for an expensive fall .
From April 2009, pharmacists will face new statutory dispute resolution procedures, an increase in holiday entitlement, and new rates for statutory maternity, paternity and adoption pay among the changes. C+D brings you up to date with the help of legal expert Gareth Edwards.
The Employment Act 2008 has now received Royal Assent and will repeal the current statutory dispute resolution procedures. This means that from April 2009 employers will be encouraged to comply with the newly revamped ACAS Code of Practice on Disciplinary and Grievance Procedures. This law change is a fresh attempt to encourage employers and employees to deal with issues at an early stage, after the 2004 statutory dismissal and grievance procedures introduced in 2004 failed to do this.
The Code provides guidance on what is expected from an employer (and an employee) in situations where a disciplinary issue or grievance arises. Tribunals will take note of the Code when hearing cases involving disciplinary and grievance issues.
Further information on the Code can be found at www.acas.org.uk; ACAS (Advisory, Conciliation and Arbitration Service) has also issued a more detailed guide on how to deal with grievance and dismissal issues. An employment tribunal cannot formally refer to the guide when reviewing a case, but it does essentially contain best practice and is worth reading.
Employment Act 2008
There is much more to the Employment Act 2008 than the changes to the dispute resolution procedures. You will also have to consider that:
- Employment tribunals will have discretionary powers to increase or decrease awards by up to 25 per cent where either the employer or the employee unreasonably fails to comply with the new ACAS Code of Practice.
- Tribunals will be able to reach a determination without a hearing if every party to the proceedings gives written consent, or if the respondent has failed to present a response or does not contest the claim.
- Tribunals will have the power to award compensation for financial loss in certain types of monetary claim. Compensation may be awarded in relation to unlawful deduction of wages and an employer’s failure to pay a statutory redundancy payment.
- The existing duty on ACAS to conciliate between parties will be extended to cover the entire proceedings and until the employment tribunal delivers a judgment. It remains to be seen how effective this change will be as currently ACAS continues to conciliate in situations where it considers there is a reasonable chance of encouraging the parties to settle.
Statutory maternity, paternity and adoption pay (SMP, SPP and SAP) will all increase from April 6. The rates will increase from £117.18 to £123.06 per week. Eligible employees are entitled to SMP at this rate for 33 weeks; SPP for two weeks, and SAP for 39 weeks.
It is also worth mentioning – as a warning to employers about the cost of losing in a tribunal – that compensation limits for awards and other statutory payments increased on February 1. Key changes are:
- maximum compensatory award for unfair dismissal £66,200 (up from £63,000)
- maximum limit on one week’s pay £350 (£330)
- maximum basic award for certain unfair dismissals (for reasons of trade union membership or activities, health and safety duties, pension scheme trustee duties, acting as an employee representative) £4,700 (£4,400)
From April 1 statutory annual leave entitlement will increase from 24 to 28 days for those working five or more days per week. This is the final stage of a two-part process to increase statutory holiday entitlement. Employers can currently opt to make a payment in lieu of the additional four-day entitlement that was introduced in October 2007. However, from April 1 statutory holiday entitlement may not be replaced by a payment in lieu.
Despite the increase in entitlement, there is still no statutory right for workers to have time off on public holidays, and this is an issue that can still be dealt with under the terms of the contract of employment. Where employers allow workers to take leave on public holidays, employers are entitled to deduct this from a worker’s statutory leave.
However, the reality is that many workers already receive holiday in addition to the statutory entitlement under their contract of employment and many employers allow public holiday to be taken as paid leave in addition to statutory leave.
Statutory sick pay
On and after April 6 eligible employees will be entitled to statutory sick pay at a rate of £79.15 per week, up from £75.40.
The right to request flexible working is currently restricted to parents of children under six (or disabled children under 18), and carers of adult (18+) dependants. There is not yet an exact date, but from April the right to request flexible working will be extended to parents of children up to, and including, the age of 16.
British workers’ priority
The home secretary has announced measures to ensure that British workers are given priority for any available job vacancies. Under the current rules employers have to publicise job vacancies for up to two weeks in the UK before advertising overseas. But there is no requirement to advertise the vacancies in a particular place and as a result some employers deliberately place their adverts in obscure places (such as newsagent windows), knowing that not many jobseekers will see the advert.
Now, the government is changing the rules so that employers are forced to advertise job vacancies in Jobcentre Plus branches before advertising abroad.
The hope is that this will ensure that thousands of skilled migrant jobs are more readily available to British workers.
Employers that break the new rules face fines of up to £10,000 for each illegal employee, as well as the risk of having their licence to employ non-EU migrants revoked.
Employment law changes: what do I need to know?
There are several other proposed employment law changes on the horizon, for dates beyond April 2009, where the implementation dates have yet to be confirmed. Gareth Edwards provides the advance warning:
Time off for public duties
The government has put forward proposals to extend the right to time off for public duties in order to reflect the types of public duty roles available in today’s society. The proposals include allowing time off for those who help young offenders, aid local courts and help council tenants manage their estates. A consultation has been issued with a view to legislation being passed in April.
National minimum wage
The government plans to change the law in relation to the NMW to ensure that tips, gratuities and service charges can no longer be used by employers to count towards payment of the NMW. This issue has received quite a lot of publicity and the general consensus seems to be that the proposals would be welcomed. The NMW will increase in October, although the increases have not yet been announced.
Rights of agency workers
Following the publication, on December 5, of the EC Directive on temporary agency work, agency workers have been given the right to equal treatment in relation to basic working and employment conditions. The government is facing increasing pressure to make full use of the three-year implementation period, but it must ensure that the provisions of the directive are implemented into UK law by December 5, 2011.
Time off for training
The right to request time off for training will not come into force until April 2010, at the earliest. The proposals are for the request procedure to be modelled on the right to request flexible working (see right). If the proposals are accepted, employees who have completed 26 weeks’ continuous service with their employer will have the right to request time off to undertake relevant training. The aim is to encourage employers to invest in their employees’ skills as a way of improving business performance. The government does not intend to specify how much time off employees should be allowed for training, but has indicated that requests for time off should be limited to one request in each 12-month period.
The government has confirmed its commitment to an Equality Bill. One of the main focuses of the Bill is to consolidate current discrimination legislation into one Act. Other proposals include: banning clauses in contracts of employment that prevent employees from discussing their pay; allowing employers to take into account under-representation of a particular group when selecting candidates for appointment or promotion; and requiring public bodies to report on inequalities in gender pay, ethnic minority employment and disability employment.
Gareth Edwards is a partner in the employment team at Veale Wasbrough Lawyers