EMPLOYMENT LAW

THE EMPLOYMENT ACT  & ACAS CODE

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.

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. 

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. Assession (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 (01793 338888) 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.

NATIONAL MINIMUM WAGE

On 1st October 2011 we saw a further change to The National Minimum wage. The new hourly rates are:
• Standard (adult) rate, 21year old’s upwards = £6.09 (was £5.93)

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.

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 01793 338888 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