The Employment Bill, which should come into force in spring 2009, will bring welcome changes to employment law, including the abolition of the statutory dismissal and grievance procedures. As a result, charities will no longer face dilemmas about what constitutes a grievance and the complicated ways in which the statutory procedures interact.
The provisions concerning procedural unfairness in dismissal cases will be abolished. Before the statutory dispute regulations came into force, employment tribunals needed to consider only whether the employer acted reasonably at the time of dismissal. It was not sufficient for an employer to adopt an unfair procedure for dismissing an employee, then to establish that if the employer had adopted a fair procedure the employee would still have been dismissed.
Under the statutory dispute regulations, an employee is treated as having been unfairly dismissed if one of the procedures in the regulations applies and has not been completed because of the employer's failure to comply with it. Subject to this, a failure by the employer to follow a procedure in relation to an employee's dismissal will not make the employer's action unreasonable, if he shows that he would have decided to dismiss the employee if he had followed the procedure. The position will revert to that held before the regulations came into force.
There are two types of period during which conciliation through Acas, the conciliation service, can take place. The shorter conciliation period of seven weeks applies to some claims, including claims for time off for public duties, for ante-natal care and to carry out trade union duties.
The standard conciliation period of 13 weeks applies to all claims not covered by the short conciliation period. In the case of discrimination, equal pay and whistle-blowing claims, Acas has an ongoing duty to conciliate until the case concludes. These provisions will be abolished and Acas will have a remit to conciliate any employment tribunal claim at any stage in the process.
The bill also includes provisions to clarify and strengthen the enforcement framework for the national minimum wage and provisions to strengthen the employment agency standards regime. Trade unions will be given new powers to exclude people from membership, and employment tribunals will have the discretion to increase awards by up to 25 per cent if an employer unreasonably fails to comply with a statutory code of practice.
- Emma Burrows, partner and head of the employment group at Trowers & Hamlins solicitors