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EMPLOYMENT LAW

 

TEN YEARS OF ACAS CONCILIATION

Article written by Christine Pratt FInstLM & FCMI. April 2016

The current Conciliation process is working well in the UK it seems – but is it working for us all.

Ten years ago, late 2006, the then Department of Business, Enterprise and Regulatory Reform (BERR) went through an analysis and consultation process to review dispute resolution practices in the UK at that time.   You may recall the Michael Gibbons Review Paper.  In October 2007 I was privileged to take part on one of the panels that debated the abolishment of The Employment Act in consideration of expanding ACAS conciliation activity where tribunal claims were crystallising.   This resulted in The ACAS Code of Practice which I played a role in drafting and which we all know and love today – as practiced by the majority of UK employers.

It has always been my view that it is far wiser to resolve a workplace dispute than to part on bad terms, even when the working relationship has broken down irretrievably.  The nuisance value of a single Stage 1 Disciplinary or Grievance can cost an employer in excess of £10,000 and that is not the end of the story.  Simply, a tribunal loss can put an employer out of business.  Whilst some employers today continue to refuse to acknowledge this risk to their business, consideration must surely be given to cost in terms of disruption, management time, distraction to the workforce, legal fees,  morale and turnover of staff and time spent on following policies and legislation – knowing all the while that there remains an ongoing risk of further litigation.  The process can be daunting, costly, distracting and harmful to any organisation – whether public or private sector, large or small.

Ten years after The ACAS Code was first tabled our Employment Tribunals report that it is a success and applications to the ET have reduced in number.  Indeed, from a Claims Management perspective I can confirm that the conciliatory approach is working well as one of our core services at HR & Diversity Management is dispute resolution and Settlement Agreement work (formally known as Compromise Agreements).  We run a helpline and over the last 12 months I have personally closed over 50 settlement cases where the working relationship had broken down completely.  Despite the fact that over 80% of work-related calls to our helpline are NHS employees, only one of those cases resolved through us involved an NHS employee.  In most of those cases the employee had been dismissed unlawfully, was being threatened with a vexatious redundancy or had resigned and was alleging constructive dismissal or discrimination.  In each case we persuaded the employer to agree to participate in conciliation talks resulting in ‘closure’ for the employer, thereby eliminating risk of an ET claim in exchange for a signature on a legally binding and mutually agreed Settlement Agreement.  The parties separated on amicable terms.

Still, I have to ask myself why some Public Sector departments and the NHS, in particular, refuse to participate in settlement talks.  Is it due to a lack of funding – or is it short sighted managerial decision making.  It is certainly contrary to the Conciliation approach.   In just two cases (one in 2011 and the other this year), the NHS were fined in excess of £5 million by our Tribunal system.

Marks v Derbyshire Healthcare NHS Foundation Trust.  In this 2016 Sexual Harassment case Mrs Marks, former HR Director at the Trust, was awarded £830,000 in compensation.

Michalak v Mid Yorkshire Hospitals NHS Trust.  In December 2011 this NHS case of race and sex discrimination cost the Trust £4.5million.

ACAS have drawn up a useful Paper called Conciliation Explained which I recommend to you.  It promotes employment relations and HR excellence.  Go to www.acas.org.uk/helpline or call 0300 123 11 00 or call us on 07734 701221 for further information.

Whether you are an employer or an employee we can guide you through Without Prejudice settlement talks.  We work closely with ACAS in cases where the conflict or disagreement may lead to an employment tribunal matter.

Our objective, in every case, is to help keep these cases out of the Employment Tribunal system.

Whatever sector you work in, we hope this is your objective too. END.

LEGISLATION

Employment Law changes year on year and is an ever-moving goalpoast in some respects.  It is important to keep up with legislation and, where relevant, update in-house policies and procedures.

THE BUDGET March 16 2016

Following the 2016 budget announcement here are just a few points (but not everything) which will impact on the workplace.

  • The National Living Wage of £7.20 per hour comes into force on 1 April 2016.
  • In Settlement Agreement cases, from April 2018, employers will need to pay National Insurance Contributions on pay-offs (e.g. termination payments) above £30,000 where income tax is also due
  • On the same subject, Settlement Agreement payments themselves, up to £30,000, remain tax-free and NICs are not payable on any of the payment. However, consultation is to commence regarding the tightening of other income tax exemptions in these cases, such as payments in lieu of notice.
  • The personal allowance increases to £11,500. The higher rate threshold will rise to £45,000 in April 2017
  • Government consultation begins in May 2016 regarding implementation and commitment of Shared Parental Leave and Pay to working grandparents.

COMPULSORY CONCILIATION & ACAS

This section applies to both employees and employers. Currently, a potential Tribunal claimant will not be able to file their claim until he/she can demonstrate that it was not possible to reach a settlement with their employer.   In simple terms, if an employee is in dispute with their employer, they are legally required to contact ACAS before submitting a Tribunal Claim.  For fuller information contact ACAS on 0300 123 1100 or go to www.acas.org.uk/helpline

We work closely with ACAS and are able to advise in cases where there is a dispute.  We are also able to assist employees and employers in Settlement Agreement talks.

For the current position, please to to www.acas.gov.uk or call us.

CRIMINAL RECORD CHECKS

Criminal Record Checks are renamed Disclosure and Barring Service checks and are now known as DBS checks. They will also become “portable” from one job to another and employers will be able to view the check instantly online from March 2013.

WHISTLEBLOWING

The definition of a protected disclosure was tightened from April  2013.  A worker must have a genuine belief that their disclosure is in the public interest in order to succeed with a whistleblowing claim.

TRIBUNAL EMPLOYER PENALTIES

Tribunals are now able to exercise their discretion to impose a financial penalty on an employer (in addition to any financial award made to a claimant) of up to 50% of any financial award made.  There will be a minimum fee and a maximum fee.   The money received from penalties will not go to the claimant but retained by the Secretary of State.

EMPLOYER ACTION

Employers are recommended to update any policies, handbooks, template letters and contract of employment to reflect the changes as detailed above. Please contact us at admin@hrdiversity.co.uk for further support and advice on regarding your company policies and procedures.

Government proposals to streamline employment laws, available now. For details; http://news.bis.gov.uk/Press-Releases/New-proposals-to-streamline-employment-law-will-boost-business-68014.aspx

 

QUALIFYING FOR UNFAIR DISMISSAL

HISTORIC

Qualifying Period to Claim Unfair Dismissal: From 6 April 2012, the qualifying period to claim unfair dismissal is extended from one year to two years. This applies only to employees whose qualifying period starts on or after 6 April 2012 — so anyone employed by the employer on 5 April remains able to claim unfair dismissal after only one year.

The right to request a written statement of reasons for dismissal is also extended from one year to two years for employees who start on or after 6 April 2012. Claims for unfair dismissal where there is no qualifying period, for example where the dismissal is for a reason based on unlawful discrimination, continue to be able to be made from day one.

NB: The above only applies to employees whose qualifying period starts on or after 6 April 2012 — so anyone employed by the employer on 5 April remains able to claim unfair dismissal after only one year. See below for further information.

Other important changes include;

RESOLVING EMPLOYMENT DISPUTES

We are experts in this area. Call us on 07734 701221  for an initial FREE consultation.

To simplify workplace disputes, a number of proposals have been made with the objective of reducing the number of claims going to employment tribunal (and to speed them up when then get there). Here is an update;

Mediation: The Department for Business, Innovation and Skills is funding training for employees from 24 SMEs  to enable them to provide mediation to organisations in their network, to help resolve employment disputes at an early stage in SMEs. The aim is to preserve the employment relationship wherever possible.  More details will follow on this initiative.  Meanwhile, we provide a mediation service. Tel: 07734 701221 and ACAS refers cases to us.

Pre-Claim Conciliation: TheEnterprise and Regulatory Reform Bill, which was introduced in Parliament on 23 May 2012, includes a requirement for details of all employment claims to be submitted initially to ACAS, before they can be lodged with the tribunal. Claimants will be offered pre-claim conciliation, but there will be no obligation on either party to take up the offer; if the offer is refused or conciliation is unsuccessful the claim can proceed to the tribunal. Limitation periods will be extended to allow time for ACAS conciliation.

This is different from the original proposal, which would have required all claims to go through pre-claim conciliation with ACAS before they could go to tribunal. The pre-claim conciliation provision is in ss.7-9 of the bill.

Rapid Resolution: S.10 of theEnterprise and Regulatory Reform Bill allows for regulations to be made permitting appointed legal officers to make decisions on behalf of the employment tribunal, if all parties to the dispute agree in writing, in specified low value, straightforward claims such as holiday pay. The intention is to be quicker and cheaper, for example by allowing for non-judicial determination based only on papers, without an oral hearing.

No-fault dismissals for micro-employers: This legislation is unlikely to actually become law but following the government’s “red tape challenge” on employment-related regulations in October 2011, the Department for Business, Innovation and Skills carried out from 15 March to 8 June 2012 a call for evidence on the implications of compensated no-fault dismissals for micro-employers with fewer than 10 employees. Under this proposal, a micro-employer would be able to dismiss an employee even if there was no fair reason for doing so and without going through a disciplinary and dismissal procedure, on payment of a set amount of compensation.

WHISTLE-BLOWING

Whistle-blowing: Under ss.43A-43L of the Employment Rights Act 1996, inserted by the Public Interest Disclosure Act 1998 (PIDA), a worker who reveals information about an employer that would normally be confidential (whistle-blowing) is protected against victimisation or dismissal, provided the worker reasonably believes the disclosure tends to show one or more of six categories, and it is made through a protected route. The categories are criminal offence, failure to comply with any legal obligation, miscarriage of justice, danger to an individual’s health or safety, damage to the environment, or deliberate concealment of information tending to show any of these. Protected routes include the employer, a legal advisor, or prescribed bodies such the Charity Commission, Health & Safety Executive, HMRC, Environment Agency etc; there are other protected routes. Disclosure to a protected body must be made in good faith.

Disclosure of information that the worker does not reasonably believe shows or tends to show one of the six categories or is not made through a protected route is not protected.

A clause included in the Enterprise and Regulatory Reform Bill, which was introduced in Parliament on 23 May 2012, would change the definition of whistle-blowing so that the worker not only has to reasonably believe the disclosed information tends to show one or more of the six categories, but also reasonably believes it is made in the public interest. Unlike other employment-related provisions in the bill, the government did not carry out any consultation on this. A change in the legislation is necessary, because the employment appeal tribunal found in Parkins v Sodexho that an employer’s breach of an individual’s contract of employment is a failure to comply with a legal obligation, and therefore disclosure of a contractual breach could be protected. There have been concerns that since this 2001 decision, PIDA is being abused in particular by City bankers using it to claim that disclosures about their bonus payments are protected disclosures.

STATUTORY MATERNITY

Statutory maternity pay (SMP) is generally 90% of the woman’s weekly earnings for the first six weeks of maternity leave. For the remaining 33 weeks of the 39-week SMP period, SMP is a flat weekly rate or 90% of average weekly earnings, whichever is less. 

This section is currently being updated.

 

PATERNITY

This section is currently being updated.

TIME OFF FOR DEPENDENTS

A case in April 2011, Clarke v Credit Resource Solutions, illustrates the importance of understanding the statutory right of all employees, regardless of length of service, to take reasonable time off to deal with unexpected or sudden situations relating to dependants, or to make necessary longer-term arrangements for dealing with the situation. There is no right to pay for the time off unless the contract says it is paid, but it is unlawful to subject an employee to a detriment for exercising their right.

Employers need to have a clear policy to ensure managers and staff know about this and understand it.

 MINIMUM WAGE

This section  is currently being updated.

RIGHTS FOR TEMPORARY WORKERS

The rights of temporary workers: From 1 October 2011, when the Agency Workers Regulations 2010 came into effect, agency workers (often referred to as temps) in England, Wales and Scotland, who are placed on assignment by a temporary work agency (TWA), are entitled to the same basic employment rights as a comparable employee or worker (the comparator) directly employed by the receiving organisation (the hirer).

FLEXIBLE WORKING

The Right to request flexible working: The government proposes that the right to request flexible working be extended to all employees who have been with their employer for 26 consecutive weeks, not just those who are parents or carers as at present. The current statutory procedure for flexible working requests would be replaced by a statutory code of practice for employers and a duty to consider requests reasonably, but there are no plans to alter the current eight business reasons for an employer to turn down a request. At present employees can request flexible leave only once in a 12-month period. Under new proposals they would be able to make a further request within 12 months where the initial request was for a temporary arrangement.

The government’s response was expected in early 2012 but has been delayed.

STATUTORY SICK

This section is currently being updated.

 PROTECTION FROM HARASSMENT ACT 1997 ss.1 and 3

There is no UK legislation specifically to protect those who may be suffering, or have suffered, from bullying at work. This does not mean they have no legal protection. It does mean, however, that to ensure legal protection or redress they must consider existing related employment law and the Acts detailed below.

 OVERLAPPING DISPUTE RULE

(Employment Act 2002, Dispute Resolution Regulations 2004 SI 2004/752 regs 6 and 7)  

In some situations it is not clear whether a capability policy, a conduct policy, a disciplinary procedure or a grievance procedure applies, or all of the above.  Managing conduct issues when performance issues are ‘said to be’ to a high standard, can be extremely difficult.  Perceptions create complications. 

The overlapping disputes rule allows the statutory procedures to be satisfied in a single process – provided the employee sends the employer the Step 1 statement of grievance before a disciplinary Appeal meeting proceeds. 

 HISTORIC

The Employment Act 2008 received royal assent on 13th November 2008 and became operational as from 6th April 2009. In summary, the Act (set out clearly under The ACAS CODE OF PRACTICE) deals with changes dealing with workplace dispute resolution, the national minimum wage, employment agencies and trade union membership law. This new ACT;

* repeals the statutory dispute resolution procedures and related provisions (under the original Employment Act; Dispute Resolution Reforms).
* As a result: There will be no more automatic unfairness for an employer’s failure to comply with the requirements of a relevant statutory procedure.
* Empowers employment tribunals to adjust awards of compensation by up to 25% for an unreasonable failure to comply with any provision of the recently published revised ACAS Code of Practice on Disciplinary and Grievance process
* Introduces a new fast-track procedure under which cases can be determined without a hearing provided both parties agree
* Makes changes to the law relating to conciliation by ACAS, thereby allowing ACAS to prioritise cases where demand for conciliation exceeds resources available for conciliation
* Provides for tribunals to award compensation for financial loss, for example bank charges incurred by the employee, following certain types of monetary claim, such as unlawful deduction from wages or non-payment of redundancy pay.

LAWS – OVER THE LAST DECADE

Over the past decade, regulations have been introduced in the UK to define indirect discrimination, harassment, less favourable treatment, unlawful harassment, gender discrimination and general principles of treatment of both men and women in the workplace today. These laws (not exclusively) include:

1. Accession (Immigration and Worker Registration) Regulations 2005
2. Agricultural Wages Order 2005
3. Compromise Agreements (Description of Person) Order 2005
4. Employment Appeal Tribunal (Amendment) Rules 2005
5. Employment Code of Practice (Access and Unfair Practices during Recognition and De recognition Ballots) Order 2005
6. Employment6 Code of Practice (Industrial Action Ballots and Notice to Employers) Order 2005
7. Employment Equality (Sex Discrimination) Regulations 2005
8. Employment Relations Act 2004 (Commencement No.4) Order 2005
9. Employment Tribunals (Constitution and Rules of Procedure) Amendment Regulations 2005
10. Employment Tribunals (Constitution and Rules of Procedure) Amendment No.2 Regulations 2005
11. ..(and 2005/1865 Unfair Dismissal/National Security involved)
12. Limited Liability Partnership (Amendment) Regulations 2005
13. National Minimum Wage Regulations 1999 (Amendment) Regulations 2005
14. Patents Act 2004 – Order 2005
15. Public Interest Disclosure – Order 2005
16. Social Security (Incapacity) Misc Amendments Regulations 2005

In addition the current laws may interest;

EMPLOYMENT EQUALITY

(Sex Discrimination) REGULATIONS 2005 SI 2005/2467

One of the most important aspects, which will impact on every day working lives, is the Employment Equality (Sex Discrimination) Regulations 2005.

Under this new piece of legislation, any form of harassment is unlawful.

Now, a woman can bring a claim IF, on the grounds of her sex, a male colleague engages in unwanted conduct that has the purpose or effect of violating her dignity, creating an intimidating, hostile, degrading, humiliating or offensive environment.

Also. if a female employee is subjected to unwanted, verbal, non-verbal or physical conduct, of a sexual nature, that violates her dignity at work – she can bring a claim against her employer.

If you are an Employer and you would like support, see our proposals for Remedy under ‘Addressing‘ section and/or look at the Employer section. Alternatively, telephone us (07734 701221) or email us at : admin@hrdiversity.co.uk

THE EQUALITY ACT

The Equality Act was introduced on 1st October 2010 and supersedes The Disability Discrimination Act and other legislation. The most important change introduced under this new Act is that, with the exception of restricted circumstances, employers are not permitted to ask any job applicant about their health or any disability until the person has been offered a job (either outright or on conditions, or included in a pool of successful candidates to be offered a job when a position becomes available). Questions relating to previous sickness absence count as questions that relate to health or disability. Please ensure your in-house recruiters (HR teams and line managers) are made aware of this important piece of legislation. If you would like further information, please contact us.

OTHER LAWS

(i) The Sex Discrimination Act 1975;
(ii) the Race Relations Act 1976 (see RACIAL DISCRIMINATION );
(iii) Employment Rights Act 1996 (especially the parts dealing with unfair dismissal , constructive dismissal and victimisation );
(iv) the www.emplaw.co.uk/free/i40.htm Health & Safety at Work etc Act 1974 and related personal injury aspects (see e.g. Health & Safety at work/stress );
(v) Trade Union & Labour Relations (Consolidation) Act 1992 (see CRIMINAL LAW ASPECTS/offences under employment legislation/intimidation );
(vi) www.emplaw.co.uk/free/data/dup1147.htm Public Interest Disclosure Act 1998;
(vii) contract law (see e.g. www.emplaw.co.uk/free/i87.htm wrongful dismissal and www.emplaw.co.uk/free/data/047003.htm implied terms in employment contracts/duties of employer ).

GENERAL LAW

(i) Criminal Justice and Public Order Act 1994; and
(ii) Public Order Act 1986;
(iii) Protection from Harassment Act 1997 s.1 and Protection from Harassment Act 1997 s.3.
(iv) www.emplaw.co.uk/free/h42.htm Human Rights/Human Rights Act 1998.

IMPLIED LAW

There is an implied term in employment contracts that “the employer shall render reasonable support to an employee to ensure that the employee can carry out the duties of his job without harassment and disruption by fellow workers” (Arnold J. in Wigan Borough Council v Davies 1979 ICR 411, quoted with approval by the House of Lords in Waters v Commissioner of Metropolitan Police 2000 ICR 1064, HL

In the Waters case the House of Lords also quoted Spring v Guardian Assurance plc 1994 ICR 596 and Wetherall (Bond Street W1) Ltd v. Lynn [1978] 1 WLR 200 as authority for the proposition that the Courts recognise a common law duty on an employer to take care of his employees, including a duty to prevent ill treatment or bullying, quite apart from statutory requirements.

As always, the position in any particular case will depend on the facts and the House of Lords was careful to point out that “it is not every course of victimisation or bullying by fellow employees which would give rise to a cause of action against the employer, and an employee may have to accept some degree of unpleasantness from fellow workers. Moreover the employer will not be liable unless he knows or ought to know that the harassment is taking place and fails to take reasonable steps to prevent it”.

ACAS (see ACAS ) publish two advisory leaflets titled “Bullying and harassment at work”, one being “Guidance for employees” and the other “A guide for managers and employers”.

WHAT WE DO

HR & Diversity Management specialises in Conflict Management issues and is currently working on an `Alternative to Dismissal’ where an employee or senior manager is found responsible for bullying or harassment in the workplace.

HR & Diversity Management conducts confidential, independent investigations where employees lodge formal grievances and has written a series of `Step By Step Guides’ for Employers and line managers. 

The introduction of the Dispute Resolution regulations meant that every Employer needed to respond in accordance with the guidelines laid down whenever an employee complains formally.  Training is aimed at; HR professionals, senior managers and line managers – in fact anyone who is responsible for managing people!  These seminars and training sessions are customised, developed and delivered in accordance with the client’s needs.

For further information on any of the above, call us on 07734 701221 or email us on admin@hrdiversity.co.uk.

2011:  The following are areas of expected law change this year, which we will report on over coming months.

Default Retirement (see above)
Maternity & Paternity Leave
Flexible Working
Equal Treatment for Agency workers
The Equality Act 2010
Bribery Act 2010
Annual Compensation Limit increases
New rates for statutory maternity and sick pay
Travel expenses will not count towards payment of National Minimum Wage