Volume 15 - December 2001

The Changing face of Employment

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The Employment Bill 2001 was given its third reading in parliament in February 2002. This bill includes a number of changes that have been in consultation this year. The bill is subject to amendment by parliament and there are no dates on when these changes will come into effect. These will have a far reaching effect on most of client organisations.

Some key items are:

  statutory disciplinary rules
  
  changes to tribunal costs arrangements 
  
  changes to conciliation rules
  
  waiving the right to a hearing
  
  pre-hearing reviews
  
  statutory maternity leave and pay 
  
  paternity leave and pay

  adoption leave and pay
  
  changes to written statements of terms and conditions 
  
  compromise agreements 
  
  equal pay questionnaires

The Key Items in Detail

Statutory Disciplinary Rules

These will be an implied term in all contracts of employment.

• tribunals to vary compensatory awards by up to 50% where either party fails to use the minimum statutory procedures.
• extension of tribunal time limits for presenting claims to allow the relevant statutory procedure to be completed.
• unfair dismissal awards for employers who dismiss without meeting their obligations under the relevant rules.
• tribunals to disregard any failures by an employer to take other procedural actions outside the
• framework of the statutory procedure, if taking such additional procedural actions would have no effect on the decision to dismiss.
• no 'contracting out' of the statutory rules.

Training programmes:

Employment Rights Act 2002, Discipline and Dismissal, Grievance and Appeals, Managers Rights

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Changes to Tribunal Costs Arrangements

The Secretary of State will be given the power to authorise tribunals to:

• make awards of costs, directly against a party's representative, because of the way the representative has conducted the proceedings.
• order that one party make a payment to the other in respect of time spent by that other party in preparing his or her case.
• Set the limit on these awards to the limit on unassessed costs - currently £10,000.
• make the new awards only in the circumstances in which a costs award may be made at present - where the party has behaved unreasonably in some way.

Training programme:

Employment Rights Act 2002

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Changes to Conciliation Rules

• regulations will set out a fixed length of the conciliation period
• hearings will not be postponed in order to allow time for conciliation unless the conciliator considers that the settlement within a short additional time frame is very likely.

Training programme:

Employment Rights Act 2002

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Waiving the Right to a Hearing

• where both parties have given their consent
• by signing a form waiving their rights to an oral public hearing
• following independent advice
• subject to the tribunal deciding that there should be a public hearing notwithstanding the parties' agreement to the contrary

Training programme:

Employment Rights Act 2002

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Pre-hearing Reviews

The deposit provisions remain the same where up to £500 can be required as a condition of proceeding to a full hearing. the existing power to strike out an application where a deposit has not been made remains the same.

Tribunals are also to exercise their existing powers to strike out in circumstances which include:

• cases in which the facts have already been litigated and the applicant has no fresh or different evidence but insists on pursuing the case;
• cases where the facts are not in dispute, but the interpretation placed on those facts by one party is clearly wrong;
• cases in which a party's application is not itself sufficient to lead a successful outcome for him, and the party has stated at the pre-hearing review that no further evidence or witnesses would be called

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Statutory Maternity Leave and Pay

• increasing from 18 to 26 weeks
• earning related 90% rate of SMP for first six weeks to be calculated on average earnings during the 8 weeks immediately preceding the 14th week before the (expected week of confinement) EWC. Currently it is calculated on basic rate
• remaining 20 weeks to be at a standard SMP rate (£100 a week) unless this is more than a woman's earnings-related rate in which case she will continue to receive that rate.
• the weekly standard SMP will continue to be not less than the weekly statutory sick pay (SSP) rate.
• after the beginning of the 15th week before the EWC women no longer need to absent from work wholly or partly because of pregnancy or confinement in order to retain their entitlement to SMP. This should alleviate the hardship experienced by pregnant women who are made redundant during this period.

This clause will also effect women whose employment ends for other reasons at this time.

• instead of requiring a woman to give notice of her absence from work because of her pregnancy, she will be required to give her employer notice of the date she expects SMP to start.
• the minimum notice period will be increased from 21 days to 28 days (as with maternity leave).
• as now, employers will recover 92% of SMP paid (small employers 100%) plus a small amount of compensation for employers NI contributions paid on SNP. However for first time employers will be able to recover SMP from tax and other payments due to the Inland Revenue.
• regulations will also provide for employers to apply for advance payments of SMP where the amount they have to pay out in SMP exceeds allowable payments due to the inland revenue.

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Paternity Leave and Pay

• 2 weeks paid leave (at £100 per week) to be taken during the first 8 weeks of the child's life

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Adoption Leave and Pay

• one adoptive parent to have 26 weeks paid leave at £100 per week or 90% of their average earnings (whichever is lower) and an additional 26 weeks unpaid.
• expect to come into force in 2003

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Changes to Written Statements of Terms and Conditions

• small employers (less than 20 staff) exemption to go.
• written statement dealing with disciplinary and grievance matters to cover the procedure which applies when an employee is dismissed or disciplined.
• employers may rely on particulars included in a copy of the contract or letter of engagement given to the employee, or to form part of the written statement to avoid duplication.
• employment tribunals to award compensation to an employee for absence, incompleteness or inaccuracy of the written statements.
• tribunals to increase any award made against the employer in respect of the complaint (by between the greater of 5% or 1 to 2 weeks pay +25%), according to whether the statement is merely incomplete or inaccurate or has never been issued at all.
• 1 or 2 weeks pay is an alternative award where compensation is not a remedy available for the particular complaint or of the tribunal chooses.

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Compromise Agreements

• A compromise agreement will no longer have to be limited to agreement about the particular complaint, and as thus will be be consistent with the current extent of ACAS-conciliated agreements.

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Equal Pay Questionnaire

• to be introduced in line with race and sex discrimination procedures.
• the questions and replies can be admitted as evidence in subsequent tribunal proceedings, subject to any other rules relating to evidence before the tribunal.

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