Beware changes to dismissals legislation (From Lancashire Telegraph)

Beware changes to dismissals legislation

1:24pm Monday 12th January 2009

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THE New Year is a chance for businesses to start afresh, with renewed impetus for the coming 12 months.

It is now as important as ever to make sure that you are up to date with current legislation and also to be aware of imminent changes which will likely affect most of us.

I have in mind in particular the changes to be made on April 6, 2009, in relation to the handling of discipline, grievances and dismissals.

The current statutory dispute resolution procedures introduced in October 2004 have proved a spectacular failure and, if anything, have resulted in an increase in the number of disputes and an unnecessarily high administrative burden for employers and employees alike.

Accordingly, in April, the existing statutory procedures will be repealed and replaced by a new ACAS Code of Practice which has recently been publish-ed in draft and is still subject to Parliamentary approval which is expected to be a formality.

The emphasis of the new 45 paragraph Code is on solving employment issues “in house” rather than through a tribunal, if at all possible.

The Code sets out basic requirements of fairness which will be taken into account by employment tribunals and provides practical guidance to employers, employees and their representatives when dealing with disciplinary and grievance situations in the work place and dismissals generally.

Unlike the current statutory procedures the Code of Practice will not apply to dismissals based on redundancy or the non renewal of fixed term contracts on their expiry.

An increased recognition of the benefits of alternative dispute resolution such as mediation and conciliation has lead to provision being made in the Code for parties to consider attempts at resolving disputes early by such methods.

The use of third parties in the resolution process could see a fundamental change in the way that human resources departments operate.

Employment tribunals will still take into account an employer’s size and resources when deciding cases but if the Code is ignored by either the employer or the employee then a tribunal will have the power to adjust any awards by up to 25% for unreasonable failure to comply with any provision in the Code.

The Code also recommends a separate policy on bullying, harassment and whistle blowing as well as collective grievances.

The Employment Act 2008, which received Royal Assent on November 13 2008, and which repeals the existing statutory dispute resolution procedures in their entirety, also changes the National Minimum Wage legislation and amends the powers of tribunals to reach a determination without a hearing.

Enforcement of the National Minimum Wage will be changed so that from April HM Revenue and Customs will be responsible for enforcement and we will see the introduction of a new penalty that can be levied against non compliant businesses.

For more information please contact me.