Abolition of the hated statutory dismissal procedures

Hello and welcome to this week’s employment law news from Reculver Solicitors.

All Change for 2009. The Statutory Dismissal Procedures Get the Chop
Since their introduction in 2004, the Statutory Dismissal Procedures have been detested by many employment practitioners, and merely loathed by others. However they are due to be swept away and replaced in April 2009. Here are some of the key features:

· Employees will no longer be required to issue grievances (for claims other than dismissal) and wait 28 days before issuing a Tribunal claim.
· The vexed question of what is or is not a grievance will therefore no longer be so important
· Employers will no longer be obliged to hear grievances from ex employees.
· Where a fixed term contract is coming to an end by reason of redundancy, there will no longer be the need to through the statutory dismissal procedures (please note though that employees on fixed term contracts with over one years service may still be able to claim unfair dismissal when dismissed at the expiry of the fixed term so caution does still need to be exercised)
· The complex provisions in which employees have six months to bring a claim if they have raised a grievance will go. The old, and simpler time limit of 3 months (in the majority of claims) will come back
· Dismissals will not be ‘automatically’ unfair simply due to the failure to follow the statutory dismissal procedure. However, a word of caution; employers still have to follow a fair procedure when dismissing, and careful attention needs to given to the revised ACAS Code (below). If any employer fails to comply with a fair procedure, the dismissal will be unfair (though an adjustment may be made to the award) even if the procedural failure made no difference to the outcome.
· If either the employer or the employee fails to follow the ACAS code, and the Tribunal considers it just and equitable, an award may be increased / decreased by up to 25% (depending on who is at fault)

We will give you more news on these developments nearer their introduction in April 2009.

For the ACAS Code please see: http://www.acas.org.uk/CHttpHandler.ashx?id=961&p=0 . With thanks to the Employment Lawyers Association Briefing and their recent article.

Underneath the Mistletoe?

Christmas is upon us, and with it the perils of office parties. Unfortunately, for some staff, the combination of free alcohol and work jollys can be fatal. In the aftermath of Christmas, employment solicitors up and down the land will find themselves advising organisations on what to do with over-amorous and tipsy staff at parties who went too far with their colleagues at the Christmas do. On more than one occasion sometimes quite senior staff and with a hitherto unblemished record have had to leave their jobs after complaints arising from such parties.

Acts committed at work Christmas parties are likely to be deemed to be in the course of employment and therefore employers can be vicariously liable for the behaviour of their staff at parties. Equal Opportunities policies should be applied as in any other work setting.

Businesses will be reluctant to go around give warnings about what behaviour is deemed to be unacceptable in advance of parties, though a subtle reminder not to get too 'merry' may well be sensible. It would also be a good idea to ensure that one or two managers keep a clear head and carefully monitor the behaviour of staff and intervene early if at all possible before any unwelcome situations escalate out of hand. It may also be a good idea to ensure that not too much free alcohol is available.

James Carmody
RECULVER SOLICITORS

Tel: 0207 324 6271 Fax: 0207 477 2276 info@reculversolicitors.co.uk
12-16 Clerkenwell Road, London EC1M 5PQ*
www.reculversolicitors.co.uk www.compromise-agreement.net

Redundancy in the Crunch

During the credit crunch, some organisations may be taking a long hard look at what over-heads can be cut back on and even in the best run organisations, redundancies will occasionally need to be made.

It's easy to get the redundancy procedure wrong and employers should proceed with care. Redundancy is the reduction in the need for people to do work of a particular kind in a particular place, and will often follow a department reorganisation. Replacing an employee with someone doing the same job but on a lower salary is unlikely to amount to redundancy. Whilst it is always advisable to take legal advice, the essence of a fair redundancy procedure is:

1. Select the pool of people from whom the redundancies will be selected. This could be all employees, or all employees from a particular department, or with a certain job title etc. The important thing is to be able to objectively justify how the pool was drawn up. A pool of one employee should be avoided if possible.

2. Consult before any decision is made. Consultation should take place with all employees who may be effected. So if you have 10 programmers, and want to cut the number to 9, you should consult with all of them to demonstrate the fairness of the procedure. The consultation should last about a week (unless more than 20 people will be affected over a 90 day period.

3. Consultation meetings should be a meaningful exercise to discuss with affected staff what is proposed, how it may affect them, what criteria will be relied upon and any potential alternatives (which could include reduced hour working, or other budgetary savings). There should be at least one but ideally two consultation meetings at which the employee in question should have the right to be accompanied by a colleague or Trade Union representative.

4. You should be able to show documents to demonstrate that objective criteria were relied upon to select anybody for redundancy, and how those criteria to everyone in the redundancy pool. That could include what income is generated for the organisation, but for staff members with less easily measurable roles, a more sophisticated score card may need to be drawn up.

5. If selected for redundancy, then the employee should be informed of any suitable alternative vacancies arising within the organisation if applicable throughout the notice period (a full vacancy list is the best option). You do not have to slot people into roles for which they are not suited though. If selected for redundancy, the employee should be given notice in writing and should be given the right to appeal.

6. The easiest way to calculate statutory redundancy payments is to visit http://www.berr.gov.uk/whatwedo/employment/employment-legislation/employment-guidance/page33157.html . Don't forget, regardless of the contractual notice, employees have the right to statutory notice of a week for each full year worked to a maximum of 12 (or payment in lieu) as well.

7. If you do opt to offer an enhanced redundancy package, then it is generally wise to offer it subject to a legally binding compromise agreement under which the employees in question sign away their rights to pursue statutory claims against you arising out of their employment.

However if you do need to make anyone redundant, speak to us first without obligation.

James Carmody
RECULVER SOLICITORS

Tel: 0207 324 6271 Mob: 0788 229 3017 Fax: 0207 477 2276 jrc@reculversolicitors.co.uk
12-16 Clerkenwell Road, London EC1M 5PQ*
www.reculversolicitors.co.uk www.compromise-agreement.net

Regulated by the Solicitors Regulation Authority Principal: James Carmody Consultant: Carol Aylott * Serviced Office. Meetings by Appointment Only

Religious Discrimination. A Cross to Bear?

You may have read in the papers about a claim in which BA prevented a member of the check in staff from wearing a visible cross whilst in uniform (though apparently BA now do permit the display of a faith or charity symbol with their uniforms), and this case has now been decided by the Employment Appeal Tribunal.

You will recall that 'direct' discrimination includes being rejected from a job because your sex or race etc, whilst an example of 'indirect' discrimination would be rejecting a request to work part time after maternity without good cause as a greater proportion of women than men ask to work part time. In Eweida v British Airways plc this week the EAT held that only direct religious discrimination can be claimed, stating that someone with 'subjective personal religious views' is only protected by direct, and not indirect, discrimination.

The Tribunal had dismissed all of Ms Eweida's claims saying that BA's policy did not put her at a particular disadvantage when compared to others. The EAT have gone beyond that, saying that that religious discrimination will only apply if an employer ought reasonably appreciate that a provision has a disparate impact on a particular group; 'there must be evidence of group disadvantage and the onus is on the claimant to prove this'. The fact that others share her beliefs is not sufficient to establish the necessary degree of disparate impact or group disadvantage.

Comment:
The fact that there has been relatively little litigation over the 2003 Religious Belief Regulations, is an indication that employers and employees alike take a fairly common sense approach to religion in the work place. The Eweida decision will make it harder than ever for individuals who wish to pursue a claim.

James Carmody
RECULVER SOLICITORS

Tel: 0207 324 6271 Fax: 0207 477 2276 info@reculversolicitors.co.uk
12-16 Clerkenwell Road, London EC1M 5PQ*
http://t.ymlp195.com/uqafaujyavaujjeanau/click.php http://t.ymlp195.com/esaaaujyaiaujjeatau/click.php

Showing Discipline

Employers and employees alike will be pleased to learn that the abolition of the troubled Statutory Dispute Resolution Procedures (DRP) is in sight.

ACAS has published its draft statutory Code of Practice on Disciplinary and Grievance procedures which is due to replace the DRP next April, and the Employment Act 2008, which will bring the Code into force, has received Royal Assent. All that is now required is for the draft Code of Practice to be approved by Parliament, which is expected to be a formality.

The draft Code, which can be found on the ACAS website, at http://www.acas.org.uk/CHttpHandler.ashx?id=961&p=0 will apply to most dismissals except for redundancies and non-renewal of fixed term contracts, and to other complaints by employees. Although a failure to follow the Code will not give rise in itself to a claim, it will be taken into account by the tribunal in any appropriate proceedings, and if a party has failed unreasonably to follow the Code, the tribunal may adjust any award of compensation by up to 25%.

The Code restates the established procedures that most employers will be familiar with, including: investigation of the facts of the case, giving the employee advance notification of disciplinary allegations, holding a formal meeting and providing an opportunity to appeal against an unfavourable decision.

Comment:
Hopefully the requirement for any failure to comply with the Code to be ‘unreasonable’ will put an end to the seemingly endless stream of cases dealing with technical issues on whether or not the DRP have been complied with. The proof of the pudding however, is in the eating and we will return to this topic nearer the Code’s introduction in April next year.

Carol Aylott
RECULVER SOLICITORS

Tel: 0207 324 6271 Fax: 0207 477 2276 info@reculversolicitors.co.uk
12-16 Clerkenwell Road, London EC1M 5PQ*
www.reculversolicitors.co.uk www.compromise-agreement.net

Regulated by the Solicitors Regulation Authority Principal: James Carmody Consultant: Carol Aylott * Serviced Office. Meetings by Appointment Only

Age and Redundancy Payments

After something of a gap, we are resuming our weekly Employment Law News, which will come out every Wednesday. However if you no longer need to receive it, just follow the link at the end of this email:

Enhanced Redundancy Payments and Age Discrimination.
The effect of the credit crunch has been wide-reaching and some of you may be dusting-off your redundancy policies.

In a couple of recent decisions (MacCulloch v Imperial Chemical Industries plc, & Loxley v BAE Systems Land Systems (Munitions & Ordnance) Ltd 2008), employees have claimed that their employers enhanced redundancy policies are indirectly discriminatory on the grounds of age. The reasoning goes that such policies generally reward long service, which inevitably puts older employees at an advantage over younger ones.

In a nutshell, the Employment Equality (Age) Regulations in 2006 state that enhanced service related redundancy policies are fine if they can be ‘justified’. The EAT in MacCulloch held that justifiable scheme aims could include encouraging and rewarding loyalty & making larger payments to older workers given their greater vulnerability in the job market. However the next hurdle to overcome is whether the policy was ‘proportionate’ to achieve a ‘legitimate’ aim. As the case was remitted to the original tribunal to decide whether it was in fact proportionate, we are still left scratching our heads.

In the second case, Mr Loxley was excluded from the enhanced redundancy scheme because he was aged 60 and could therefore draw his pension from that age. The employer did not want him to get a windfall on redundancy. The EAT held that preventing a windfall could be a legitimate aim. It also said that consultation with the unions on such a policy was influential, but not conclusive. Again the question of proportionality was kicked back to the original tribunal to decide.

Comment:
The safest bet is to operate enhanced redundancy schemes that mirror statutory redundancy payments, for example by removing the statutory cap of £330 on a weeks pay. Otherwise you will have to not only justify your policy as achieving a legitimate aim, but show that it is proportionate. This could prove a problem though and will require careful analysis. For further advice or in-house training on redundancy, drop me a line.

James Carmody.
RECULVER SOLICITORS

Tel: 0207 324 6271 Mob: 0788 229 3017 Fax: 0207 477 2276 jrc@reculversolicitors.co.uk
12-16 Clerkenwell Road, London EC1M 5PQ*
www.reculversolicitors.co.uk www.compromise-agreement.net

Regulated by the Solicitors Regulation Authority Principal: James Carmody Consultant: Carol Aylott * Serviced Office. Meetings by Appointment Only