Employment Law Update

Employment Law News Update for HR Managers


Welcome to the latest edition of our Employment Enews. In this edition we focus on the issues of the changes to the Sex Discrimination Act 1975.


The Sex Discrimination Act 1975 (Amendment) Regulations 2008 have finally been published and come into force on 6th April 2008. The regulations make various changes to the Sex Discrimination Act 1975 so that this now complies with the Equal Treatment Directive (76/207/EEC).

Definition of sex harassment

The regulations expand the definition of sex harassment. They remove the causal link between the effect of the unwanted conduct and the sex of the person being harassed (removing the phrase “on the ground of her sex” and adding the phrase “related to her sex or that of another person”). This change means that claims can now be made if the unwanted conduct is related to the sex of the victim or any other person, facilitating associative claims such as claims by witnesses -because the person who considers that their dignity has been violated or that the conduct creates an offensive and degrading environment for them need not be the primary recipient of that conduct.

Increased liability for employers for third party harassment.

It will be unlawful for an employer to fail to take reasonably practicable steps to protect employees from harassment by third parties where harassment is known to have occurred on at least two other occasions. This means that employers must be increasingly aware of their employees’ treatment by third parties, and take action to prevent harassment, particularly as the regulations make it clear that liability will be incurred irrespective of whether the third party is the same or a different person on each occasion.

Removal of comparator for discrimination on grounds of pregnancy or maternity leave.

The requirement of a comparator who is not pregnant nor on maternity leave is eliminated in claims for discrimination on grounds of pregnancy or maternity leave.

Terms and conditions during maternity leave.

Women whose expected week of childbirth begins on or after 5 October 2008 will have greater rights. Commentators are suggesting that the changes represent a significant extension in maternity rights. Firstly the regulations make it clear that women are entitled to discretionary bonuses calculated with reference to the two week compulsory maternity leave. In addition, and most importantly, the regulations eliminate the distinction between different types of maternity leave in relation to terms and conditions. Women will now be entitled to the same (non pay) benefits irrespective of the type of maternity leave they are taking. This means that employers who do not currently provide non-cash benefits during Additional Maternity Leave will now be required to do so. This may include gym membership, company car, mobile phone and any contractual leave above the statutory entitlement. This change may therefore have significant cost and administrative implications for some employers.

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Remember, we can incorporate these or any other cases into our Employment Law courses.

Dispute Resolution Regulations - practical advice

Dispute Resolution Regulations

Still here - but not for long - 2009 will soon be here! The concept of the procedures was not to hinder employers or employees but rather to encourage communication in the workplace with the aim, if possible, to resolve any problems without the need to attend Employment Tribunals. Hasn't quite worked, but we're stuck with them for a whilwe longer.

The procedures usually apply in situations where the employer wishes to dismiss an employee on the grounds of capability, conduct, redundancy, expiry of a fixed term contract or retirement. By having clear disciplinary rules workers are aware of what is expected from them. The rules also can help promote employer and employee relations.

The question for all employers is what is considered a fair and reasonable disciplinary procedure?

STANDARD DISMISSAL AND DISCIPLINARY PROCEDURE

STEP 1
Employer should:

- Sets in writing nature of the problem

- Sends a copy to the employee

- Inform the employee of the basis of the complaint

STEP 2
Employer should:

- invite the employee to a meeting to discuss the issue

- After the meeting – inform the employee about any decision and offer the right to appeal

Employee:

- should take all reasonable steps to attend the meeting set

STEP 3
Employer:

- should invite the employee to attend a further meeting to discuss the appeal

- the final decision must be communicated to the employee
Employee:

- if they wish to appeal he must inform the employer

A modified 2 step dismissal procedure will apply instead of the standard procedure above in very limited number of situations Such circumstances would include gross misconduct where a dismissal would be found to be fair by an employment tribunal.


STANDARD GRIEVANCE PROCEDURE

The employee must initiate the standard grievance procedure where they have a complaint about any action by the employer unless the actions fall within the dismissal and disciplinary procedure:

STEP 1
Employee should:

- Sets in writing nature of the problem

- Sends a copy to the employer

- Inform the employer of the basis of the complaint

STEP 2
Employer should:

- Invite the employee to at least one hearing at a reasonable time and place at which the alleged grievance can be discussed

- After the meeting – inform the employee about any decision and offer the right to appeal

Employee:

- should take all reasonable steps to attend the meeting set

STEP 3
Employer:

- If the employee has appealed the employer should invite them to attend a further meeting to discuss the appeal

- the final decision must be communicated to the employee
Employee:

- if they feel the grievance has not been resolved they can inform the employer they wish to appeal


A modified procedure may apply in cases where the employment has already ended and either it is not reasonably practical for one or other of the parties to use the standard procedure or if both the employer and employee have agreed in writing to use the modified procedure.

Whether you are a large or small company, as the employer, ensure you that you have followed the correct procedures in a dismissal case as failure to do so could result in a dismissal being deemed automatically unfair. Alternatively, employees will be required to know their rights. Failure to provide a grievance in writing could result in their complaint being inadmissible at an Employment Tribunal. Indeed, failure by either party could increase or decrease compensation from between 10% to 50%.

The standard procedures have been created to form a basis on which employers can build upon. For those of you with procedures already in place do not think that this means that you either must or can simplify your procedures. Indeed, to do so without permission of the employees could be deemed breach of contract. The statutory procedures are only the minimum requirements and any drafting of grievance procedures, dismissal and disciplinary procedures should take into account the recommendations of ACAS.

Their suggested core principles of reasonable practice are as follows:

1. Use procedures to encourage workers to improve where possible rather than just as a way of imposing a punishment;

2. Inform the worker of the complaint against them and provide them with an opportunity to state their case before making a decision;

3. Allow workers to be accompanied at disciplinary meetings;

4. Make sure that disciplinary action is not taken until the facts of the case have been established;

5. Never dismiss a worker for a first disciplinary offence unless it is a case of gross misconduct;

6. Always give the worker an explanation for any disciplinary action taken and make sure they know what improvement is expected;

7. Give the worker the opportunity to appeal.

ACAS are still in the process of finalising their code of practice. Although ACAS codes of practice are not binding in law they are likely to be considered best practice.

To some the idea of setting a minimum statutory requirement may seem onerous and unnecessary but it must be borne in mind that the purpose is to ensure a better working relationship between the employer and employees which can only serve to create a better working environment and to hopefully limited costly and unnecessary claims at Employment Tribunals.

If its too late for you we can still help as we regularly help clients prepare their ET3, case manage and represent employers at Tribunals.

If you wish to discuss you case on an informal basis please do not hesitate to contact us on:

07901 556 032 or
DisputeResolution@management-development.org