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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 Potential opportunity for TUs Training ?

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Employment Act 2008

IER Conference 2009

_______________________


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Changes good or bad?

  • Statutory Dispute resolution procedures under the 2002 Act sought to reduce ETs and resolve more disputes at work

    • Potential opportunity for TUs

    • Training ?

    • 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?

  • New calculations re damages give more incentive to employers to pay at least the NMW and full redundancy pay


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Summary of the changes:

  • Previous procedures will be repealed from 6 April 2009

  • No automatically unfair dismissal

  • Failure to lodge grievance does not prevent a claim

  • Potential for uplift or reduction in compensation of 25%

  • No extensions to time limits – key lesson for TUs


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ACAS Code of Practice

  • 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

  • Both employers and employees have duties under the Code of Practice

  • Code pdf at http://www.acas.org.uk/CHttpHandler.ashx?id=1041


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ACAS Code of Practice cont’d

  • Code supplemented by Guidance http://www.acas.org.uk/CHttpHandler.ashx?id=1043

  • 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


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General Requirements

  • Issues should be raised and dealt with promptly

  • Parties should act consistently

  • Employers should carry out necessary investigations to establish facts

  • Right to be accompanied to meetings (note S10 and rows re Code)

  • 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


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Dismissals – Employer responsibilities

  • Carry out investigations and hold meetings without delay

  • 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

  • Provide copies of any written evidence including witness statements


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Dismissals – Employer responsibilities cont’d

  • 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

  • Different people to carry out investigation, disciplinary and appeal hearing where possible

  • Inform employee of any action in writing

    • [note hesitation in Code and Guide re time for expiry of warnings]


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Dismissals – Employer responsibilities cont’d

  • 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

  • Appeals to be heard without delay at an agreed time and place

  • Inform employee of outcome of appeal as soon as possible in writing


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Dismissals – Employee responsibilities

  • 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

  • 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


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Grievances – Employee responsibilities

  • Try informal resolution first, + ASAP

  • 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

  • Make every effort to attend meetings

  • Appeal if not satisfactorily resolved giving grounds of appeal


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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]

  • Industrial prerequisites for a collective grievance

    • Issue common to a group of members

    • Authority from the group purported to grieve

  • Collective grievances should be raised in accordance with existing procedure


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Grievances – Employer responsibilities

  • Hold a formal meeting without delay Where possible, manager not involved with case should hear it

  • Make every effort to attend the meeting

  • Allow employee to explain grievance

  • Adjourn and investigate if necessary

  • Communicate decision in writing without unreasonable delay


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Grievances – Employer responsibilities

  • Inform of right to appeal

  • Hear appeals without unreasonable delay

  • Wherever possible have a different manager hear the appeal

  • Communicate the outcome of the appeal in writing without delay


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Dismissal and grievance arising together

  • 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

  • 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


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Time Limits

  • Extensions to time limits will no longer apply

  • All claims must be submitted within primary limitation period

  • Try to lodge appeal or grievance well before submitting the claim if possible


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Right to be Accompanied

  • Provisions of S.10 Employment Relations Act 1999 apply

  • Code explains but does not add to current statutory procedures

  • Right to be accompanied to grievance and disciplinary hearings

    • ‘reasonable request’

    • 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


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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” 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


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Conciliation and mediation:

  • Code theme: informal – ‘workplace’ – mediation [see Guide pp.7-8 esp. grievances]

  • Should TUs be getting involved with the ACAS project re workplace mediation?

  • Mediation for bullying/harassment claims?

  • Fixed conciliation periods abolished

  • ACAS to use selectively


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