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.
Wednesday, December 17, 2008
Wednesday, December 10, 2008
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
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
Wednesday, December 3, 2008
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
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
Subscribe to:
Posts (Atom)