Welcome to OMS Blog
Employment Law Update 2009
April 03, 2009
As usual, April has brought with it a raft of new employment legislation. I have attached below the key pieces of law effective from April 2009.
FLEXIBLE WORKING
Keep your eye out for an increase in applications for Flexible Working, as more than 10 million people (as opposed to 4.5 million at present) will have the right to request flexible working from next week. From Monday 6 April 2009 all carers and parents of children aged up to 16 years, or children with disabilities aged up to 18, will have the right to request flexible working. This is an expansion of the right, which previously was for parents and carers of children up to the age of 6 years.
The procedure for handling requests for flexible working shouldn’t change, but it is a good idea to be prepared for increased interest due to the extension of this right.
STATUTORY HOLIDAY ENTITLEMENTS
The statutory entitlement to paid holiday has increased from 24 days to 28 days from 1 April 2009. This holiday entitlement can, however, include bank holidays. If your employees already receive paid time off for bank holidays in addition to a four week holiday entitlement your holiday entitlement will not need to be increased.
STATUTORY DISPUTE RESOLUTION PROCEDURES
Also from Monday 6 April the 3 step statutory dismissal and disciplinary procedures and the 3 step statutory grievance procedures will be repealed and no new statutory procedures will replace them. The law on unfair dismissal will them return to the position prior to the new dispute resolution procedures which came into force in October 2004. A revised statutory ACAS Code of Practice on disciplinary and grievance procedures has been introduced. This is not legally binding but will be taken into consideration by Employment Tribunals.
From what I can gather, the main reason for this change is that there has been an abundance of tribunal cases over recent years, which have been more about the legal interpretation/definition of a grievance, rather than the reasonableness of the employer. This has only led to more confusion and in many cases influx in grievances which would have been deemed illegitimate previously. Overall, I believe this retraction should make life a little easier and more straightforward for all concerned.
What does this mean for you?
The short answer is very little. My advice would still be to follow the ACAC Code of Practice on disciplinary and grievance matters and therefore keep your policies and procedures as they are. The only real change that you should be aware of is that this Code does not now apply to dismissals due to redundancy or the non-renewal of fixed term contracts on their expiry.
Why do I believe we should still follow the ACAS Code?
A failure to follow the Code will not, in itself, mean you are liable to proceedings. However, employment tribunals will take the Code into account when considering relevant cases. Tribunals will also be able to adjust any awards made in relevant cases by up to 25% for unreasonable failure to comply with any provision of the Code. This means that if the tribunal feels that an employer has unreasonably failed to follow the guidance set out in the Code they can increase any award they have made by up to 25%. Conversely, if they feel an employee has unreasonably failed to follow the guidance set out in the code they can reduce any award they have made by up to 25%.
I have detailed below a summary of the relevant changes for your information:
STATUTORY PAYMENTS
Statutory maternity, paternity and adoption pay increases
The standard rate of statutory maternity pay, statutory paternity pay and statutory adoption pay has just increased from £117.18 to £123.06 in April.
Statutory sick pay
Statutory sick pay has also increased from £75.40 to £79.15 in April.
Statutory redundancy pay & unfair dismissal
Just to remind you also that the new rates for statutory redundancy pay from 1 February 2009 are:
The new awards for unfair dismissal from 1 February 2009 are:
Posted by Allison Peasgood
FLEXIBLE WORKING
Keep your eye out for an increase in applications for Flexible Working, as more than 10 million people (as opposed to 4.5 million at present) will have the right to request flexible working from next week. From Monday 6 April 2009 all carers and parents of children aged up to 16 years, or children with disabilities aged up to 18, will have the right to request flexible working. This is an expansion of the right, which previously was for parents and carers of children up to the age of 6 years.
The procedure for handling requests for flexible working shouldn’t change, but it is a good idea to be prepared for increased interest due to the extension of this right.
STATUTORY HOLIDAY ENTITLEMENTS
The statutory entitlement to paid holiday has increased from 24 days to 28 days from 1 April 2009. This holiday entitlement can, however, include bank holidays. If your employees already receive paid time off for bank holidays in addition to a four week holiday entitlement your holiday entitlement will not need to be increased.
STATUTORY DISPUTE RESOLUTION PROCEDURES
Also from Monday 6 April the 3 step statutory dismissal and disciplinary procedures and the 3 step statutory grievance procedures will be repealed and no new statutory procedures will replace them. The law on unfair dismissal will them return to the position prior to the new dispute resolution procedures which came into force in October 2004. A revised statutory ACAS Code of Practice on disciplinary and grievance procedures has been introduced. This is not legally binding but will be taken into consideration by Employment Tribunals.
From what I can gather, the main reason for this change is that there has been an abundance of tribunal cases over recent years, which have been more about the legal interpretation/definition of a grievance, rather than the reasonableness of the employer. This has only led to more confusion and in many cases influx in grievances which would have been deemed illegitimate previously. Overall, I believe this retraction should make life a little easier and more straightforward for all concerned.
What does this mean for you?
The short answer is very little. My advice would still be to follow the ACAC Code of Practice on disciplinary and grievance matters and therefore keep your policies and procedures as they are. The only real change that you should be aware of is that this Code does not now apply to dismissals due to redundancy or the non-renewal of fixed term contracts on their expiry.
Why do I believe we should still follow the ACAS Code?
A failure to follow the Code will not, in itself, mean you are liable to proceedings. However, employment tribunals will take the Code into account when considering relevant cases. Tribunals will also be able to adjust any awards made in relevant cases by up to 25% for unreasonable failure to comply with any provision of the Code. This means that if the tribunal feels that an employer has unreasonably failed to follow the guidance set out in the Code they can increase any award they have made by up to 25%. Conversely, if they feel an employee has unreasonably failed to follow the guidance set out in the code they can reduce any award they have made by up to 25%.
I have detailed below a summary of the relevant changes for your information:
| Subject | Current Position | New Position |
| Disciplinary Matters | ||
| Automatic Unfair Dismissal | A dismissal is automatically unfair if the 3 step statutory procedures are not complied with. | There will be no ‘automatic’ unfair dismissal, for failing to follow a specific procedure. A tribunal will consider fairness in light of all the circumstances though and taking into account the ACAS code. |
| Redundancies and Fixed Term Contracts | The 3 step process applies here also. | There is no need to follow a statutory procedure. A tribunal would consider ‘fairness’ and will not refer to the ACAS code for this. |
| Grievance Matters | ||
| Ability to submit a tribunal claim | To bring a claim in a tribunal an employee must have raised a grievance with their employer and waited 28 days. | An employee does not need to raise a grievance in order to bring a claim. |
| Definition of Grievance | Defined by statute as a complaint by an employee about action which his employer has taken or is contemplating taking, in relation to him. | There is no need to raise a grievance in order to make a tribunal claim. The new ACAS code does however state that a grievance should be raised in writing. |
| Grievances brought after date of termination | An employer must still hear grievances from ex-employees. | There is no statutory obligation to hear grievances from ex-employees. |
STATUTORY PAYMENTS
Statutory maternity, paternity and adoption pay increases
The standard rate of statutory maternity pay, statutory paternity pay and statutory adoption pay has just increased from £117.18 to £123.06 in April.
Statutory sick pay
Statutory sick pay has also increased from £75.40 to £79.15 in April.
Statutory redundancy pay & unfair dismissal
Just to remind you also that the new rates for statutory redundancy pay from 1 February 2009 are:
- A week's pay has risen from £330 to £350;
- The maximum statutory redundancy payment has increased from £9,900 to £10,500.
The new awards for unfair dismissal from 1 February 2009 are:
- The maximum compensatory award for unfair dismissal will rise from £63,000 to £66,200.
- The basic award for unfair dismissal has increased from £9,900 to £10,500.
Posted by Allison Peasgood
