Employment Act 2008 IER Conference 2009 _______________________

Changes good or bad? Statutory Dispute resolution procedures under the 2002 Act sought to reduce ETs and resolve more disputes at work Statutory Dispute resolution procedures under the 2002 Act sought to reduce ETs and resolve more disputes at work Potential opportunity for TUs Potential opportunity for TUs Training ? Training ? Overly bureaucratic and rise in procedural litigation Overly bureaucratic and rise in procedural litigation Changes likely to produce new test litigation. No drop in ETs unless mediation model works. Opportunity or threat for TUs and our members? Changes likely to produce new test litigation. No drop in ETs unless mediation model works. Opportunity or threat for TUs and our members? New calculations re damages give more incentive to employers to pay at least the NMW and full redundancy pay New calculations re damages give more incentive to employers to pay at least the NMW and full redundancy pay

Summary of the changes: Previous procedures will be repealed from 6 April 2009 Previous procedures will be repealed from 6 April 2009 No automatically unfair dismissal No automatically unfair dismissal Failure to lodge grievance does not prevent a claim Failure to lodge grievance does not prevent a claim Potential for uplift or reduction in compensation of 25% Potential for uplift or reduction in compensation of 25% No extensions to time limits – key lesson for TUs No extensions to time limits – key lesson for TUs

ACAS Code of Practice No mandatory “3 step” procedures for dismissals or grievances; No mandatory “3 step” procedures for dismissals or grievances; TULRCA amended so that failure to follow ACAS Code of Practice may result in uplift or reduction to compensation TULRCA amended so that failure to follow ACAS Code of Practice may result in uplift or reduction to compensation Both employers and employees have duties under the Code of Practice Both employers and employees have duties under the Code of Practice Code pdf at Code pdf at

ACAS Code of Practice cont’d Code supplemented by Guidance Code supplemented by Guidance Applies to conduct and capability dismissals Applies to conduct and capability dismissals Applies to all non-dismissal claims for which it was previously necessary to raise a grievance, i.e. most non-dismissal claims Applies to all non-dismissal claims for which it was previously necessary to raise a grievance, i.e. most non-dismissal claims

General Requirements Issues should be raised and dealt with promptly Issues should be raised and dealt with promptly Parties should act consistently Parties should act consistently Employers should carry out necessary investigations to establish facts Employers should carry out necessary investigations to establish facts Right to be accompanied to meetings (note S10 and rows re Code) Right to be accompanied to meetings (note S10 and rows re Code) Appeal procedures should be made available and used Appeal procedures should be made available and used Where grievance raised during disciplinary process, employer may suspend to deal with grievance or deal with both at same time if appropriate Where grievance raised during disciplinary process, employer may suspend to deal with grievance or deal with both at same time if appropriate

Dismissals – Employer responsibilities Carry out investigations and hold meetings without delay Carry out investigations and hold meetings without delay Keep suspension periods as brief as possible Keep suspension periods as brief as possible Notify employee in writing of the case against them and possible consequences as well as time and venue for disciplinary meeting Notify employee in writing of the case against them and possible consequences as well as time and venue for disciplinary meeting Provide copies of any written evidence including witness statements Provide copies of any written evidence including witness statements

Dismissals – Employer responsibilities cont’d At the hearing, explain the complaint to the employee and give an opportunity to put case At the hearing, explain the complaint to the employee and give an opportunity to put case Give employee a reasonable opportunity to ask questions present evidence and call witnesses Advance notice to be given of witnesses Give employee a reasonable opportunity to ask questions present evidence and call witnesses Advance notice to be given of witnesses Different people to carry out investigation, disciplinary and appeal hearing where possible Different people to carry out investigation, disciplinary and appeal hearing where possible Inform employee of any action in writing Inform employee of any action in writing [note hesitation in Code and Guide re time for expiry of warnings] [note hesitation in Code and Guide re time for expiry of warnings]

Dismissals – Employer responsibilities cont’d If dismissal, must give reasons for dismissal, termination date and right of appeal If dismissal, must give reasons for dismissal, termination date and right of appeal Where employee persistently unwilling or unable to attend, employer entitled to make decision on evidence available Where employee persistently unwilling or unable to attend, employer entitled to make decision on evidence available Appeals to be heard without delay at an agreed time and place Appeals to be heard without delay at an agreed time and place Inform employee of outcome of appeal as soon as possible in writing Inform employee of outcome of appeal as soon as possible in writing

Dismissals – Employee responsibilities Not unreasonably delay meetings (and also consider “right to be accompanied” provisions) Not unreasonably delay meetings (and also consider “right to be accompanied” provisions) Note risk of hearing in absence if employee “unable or unwilling to attend a disciplinary meeting without good cause” [Code] + Guide p.20 Note risk of hearing in absence if employee “unable or unwilling to attend a disciplinary meeting without good cause” [Code] + Guide p.20 Notify employer in advance of any witnesses to be called Notify employer in advance of any witnesses to be called In most situations, appeal in writing against a decision that they consider to be wrong In most situations, appeal in writing against a decision that they consider to be wrong

Grievances – Employee responsibilities Try informal resolution first, + ASAP Try informal resolution first, + ASAP If matter can’t be dealt with informally, raise the matter formally and without unreasonable delay If matter can’t be dealt with informally, raise the matter formally and without unreasonable delay Put grievance in writing and set out nature of the grievance Put grievance in writing and set out nature of the grievance Make every effort to attend meetings Make every effort to attend meetings Appeal if not satisfactorily resolved giving grounds of appeal Appeal if not satisfactorily resolved giving grounds of appeal

Collective Grievances Different arrangements apply for ‘collective grievances’ Different arrangements apply for ‘collective grievances’ Code defines as: “grievances raised on behalf of two or more employees by a representative of a recognised trade union or other appropriate workplace representative”.. [not defined] Code defines as: “grievances raised on behalf of two or more employees by a representative of a recognised trade union or other appropriate workplace representative”.. [not defined] Industrial prerequisites for a collective grievance Industrial prerequisites for a collective grievance Issue common to a group of members Issue common to a group of members Authority from the group purported to grieve Authority from the group purported to grieve Collective grievances should be raised in accordance with existing procedure Collective grievances should be raised in accordance with existing procedure

Grievances – Employer responsibilities Hold a formal meeting without delay Where possible, manager not involved with case should hear it Hold a formal meeting without delay Where possible, manager not involved with case should hear it Make every effort to attend the meeting Make every effort to attend the meeting Allow employee to explain grievance Allow employee to explain grievance Adjourn and investigate if necessary Adjourn and investigate if necessary Communicate decision in writing without unreasonable delay Communicate decision in writing without unreasonable delay

Grievances – Employer responsibilities Inform of right to appeal Inform of right to appeal Hear appeals without unreasonable delay Hear appeals without unreasonable delay Wherever possible have a different manager hear the appeal Wherever possible have a different manager hear the appeal Communicate the outcome of the appeal in writing without delay Communicate the outcome of the appeal in writing without delay

Dismissal and grievance arising together A dismissal might give rise to a claim other than unfair dismissal (such as discrimination) A dismissal might give rise to a claim other than unfair dismissal (such as discrimination) Alternatively there might be incidents of discrimination or other money claims which are linked to dismissal Alternatively there might be incidents of discrimination or other money claims which are linked to dismissal Raise appeal and grievances in same letter and ask for them to be heard together Raise appeal and grievances in same letter and ask for them to be heard together If grievance not linked to dismissal, send a separate grievance letter If grievance not linked to dismissal, send a separate grievance letter

Time Limits Extensions to time limits will no longer apply Extensions to time limits will no longer apply All claims must be submitted within primary limitation period All claims must be submitted within primary limitation period Try to lodge appeal or grievance well before submitting the claim if possible Try to lodge appeal or grievance well before submitting the claim if possible

Right to be Accompanied Provisions of S.10 Employment Relations Act 1999 apply Provisions of S.10 Employment Relations Act 1999 apply Code explains but does not add to current statutory procedures Code explains but does not add to current statutory procedures Right to be accompanied to grievance and disciplinary hearings Right to be accompanied to grievance and disciplinary hearings ‘ reasonable request’ ‘ reasonable request’ Grievance only where “..a complaint about a duty owed by the employer to the worker..” Grievance only where “..a complaint about a duty owed by the employer to the worker..” Right to have meeting rearranged within 5 working days if representative can’t attend Right to have meeting rearranged within 5 working days if representative can’t attend

Transitional Arrangements “Old” dismissal procedures apply where Step 1 letter sent or Step 2 meeting held or where dismissal has taken place before 6 April 2009 “Old” dismissal procedures apply where Step 1 letter sent or Step 2 meeting held or where dismissal has taken place before 6 April 2009 “Old” grievance procedures apply where conduct giving rise to grievance is completed or starts before 5 April 2009 if a Step 1 letter is presented before 4 July 2009 (4 October 2009 for equal pay and redundancy claims) “Old” grievance procedures apply where conduct giving rise to grievance is completed or starts before 5 April 2009 if a Step 1 letter is presented before 4 July 2009 (4 October 2009 for equal pay and redundancy claims) Otherwise new procedures will apply from 6 April 2009 Otherwise new procedures will apply from 6 April 2009

Conciliation and mediation: Code theme: informal – ‘workplace’ – mediation [see Guide pp.7-8 esp. grievances] Code theme: informal – ‘workplace’ – mediation [see Guide pp.7-8 esp. grievances] Should TUs be getting involved with the ACAS project re workplace mediation? Should TUs be getting involved with the ACAS project re workplace mediation? Mediation for bullying/harassment claims? Mediation for bullying/harassment claims? Fixed conciliation periods abolished Fixed conciliation periods abolished ACAS to use selectively ACAS to use selectively