It’s time to dust off your disciplinary and dismissal procedures, advises Steve Crabb
The government’s love of shiny new red tape has now got so bad that there’s a national shortage of employment lawyers. Speaking at a conference last month organised by the Chartered Institute of Personnel and Development (CIPD), Tim Bates, of legal recruitment firm Macildowie Bates, said demand for people with expertise in employment law had gone up by a quarter in the last year alone. Many of those new jobs are in-house posts at large corporations which have decided they can no longer rely on external advisers to keep them safe, although the law firms have been busily expanding their employment law practices too.
It’s easy to see why businesses are worried: the number of potential offences is growing all the time, and even well-resourced employers can fall down on a relatively minor detail. Earlier this month London Underground lost a high-profile employment tribunal case. Tube driver Chris Barrett had been seen playing squash when he was on sick leave with an ankle injury. Although the tribunal found Mr Barrett 75% to blame for his own dismissal, it held that London Underground had messed up on a technicality, so the dismissal was unfair.
The government has been trying to tidy up the system (and thereby reduce the pressure on the employment tribunals), but according to Richard Lister,of employment law specialists Lewis Silkin, the new regime could end up making matters a lot worse for employers. The most important change, which takes effect from October 1 this year, is that all employers will have to follow set procedures in disciplinary and dismissal cases - if they don’t, the dismissal will automatically be unfair, regardless of the merits of the case. Moreover, the employee will be entitled to a higher level of compensation. “There are real traps for employers in these new regulations,” warns Richard Lister. “Companies might think they have good policies in place, but there’s a lot of scope for employees to interpret these new rules creatively.”
More positively, the new rules will force aggrieved employees to go through a mandatory grievance procedure before they can take a case to tribunal, and new forms of paperwork will force both sides to disclose more detail on their cases before they get to the court. This is another step forward - too many claims end up collapsing at the eleventh hour, by which time the claimant and their former managers will have been put under a great deal of stress, and the employing organisation drained of resources. In fact, tribunals will be given new authority to reject weak claims, and there’ll be a narrower window within which Acas, the arbitration and conciliation service, can be called in to broker a deal; this will be seven weeks in simpler cases and 13 weeks in more involved and complicated disputes.
So what should employers do to prepare for the new regime? Acas has produced a new code of practice on disciplinary and grievance procedures, including the new mandatory steps. Employers would be well advised to adopt this code, which is currently still in draft form, as soon as it is finalised - and to make sure every manager is familiar with it. (See website www.acas.org.uk for more details of the code and for lots of other helpful and extremely useful advice on best practice).
Richard Lister advises employers to review dismissal procedures, including those covering redundancy and non-renewal of fixed-term contracts - not just their disciplinary policies - and to think about how they handle all employees, including senior executives.
In the longer term, the government has announced that the whole system will be reformed again, to create a simpler, apparatus. A White Paper is expected later this year. In the meantime, employers could be in for some turbulent times.
n Steve Crabb is editor of People Management
The government’s love of shiny new red tape has now got so bad that there’s a national shortage of employment lawyers. Speaking at a conference last month organised by the Chartered Institute of Personnel and Development (CIPD), Tim Bates, of legal recruitment firm Macildowie Bates, said demand for people with expertise in employment law had gone up by a quarter in the last year alone. Many of those new jobs are in-house posts at large corporations which have decided they can no longer rely on external advisers to keep them safe, although the law firms have been busily expanding their employment law practices too.
It’s easy to see why businesses are worried: the number of potential offences is growing all the time, and even well-resourced employers can fall down on a relatively minor detail. Earlier this month London Underground lost a high-profile employment tribunal case. Tube driver Chris Barrett had been seen playing squash when he was on sick leave with an ankle injury. Although the tribunal found Mr Barrett 75% to blame for his own dismissal, it held that London Underground had messed up on a technicality, so the dismissal was unfair.
The government has been trying to tidy up the system (and thereby reduce the pressure on the employment tribunals), but according to Richard Lister,of employment law specialists Lewis Silkin, the new regime could end up making matters a lot worse for employers. The most important change, which takes effect from October 1 this year, is that all employers will have to follow set procedures in disciplinary and dismissal cases - if they don’t, the dismissal will automatically be unfair, regardless of the merits of the case. Moreover, the employee will be entitled to a higher level of compensation. “There are real traps for employers in these new regulations,” warns Richard Lister. “Companies might think they have good policies in place, but there’s a lot of scope for employees to interpret these new rules creatively.”
More positively, the new rules will force aggrieved employees to go through a mandatory grievance procedure before they can take a case to tribunal, and new forms of paperwork will force both sides to disclose more detail on their cases before they get to the court. This is another step forward - too many claims end up collapsing at the eleventh hour, by which time the claimant and their former managers will have been put under a great deal of stress, and the employing organisation drained of resources. In fact, tribunals will be given new authority to reject weak claims, and there’ll be a narrower window within which Acas, the arbitration and conciliation service, can be called in to broker a deal; this will be seven weeks in simpler cases and 13 weeks in more involved and complicated disputes.
So what should employers do to prepare for the new regime? Acas has produced a new code of practice on disciplinary and grievance procedures, including the new mandatory steps. Employers would be well advised to adopt this code, which is currently still in draft form, as soon as it is finalised - and to make sure every manager is familiar with it. (See website www.acas.org.uk for more details of the code and for lots of other helpful and extremely useful advice on best practice).
Richard Lister advises employers to review dismissal procedures, including those covering redundancy and non-renewal of fixed-term contracts - not just their disciplinary policies - and to think about how they handle all employees, including senior executives.
In the longer term, the government has announced that the whole system will be reformed again, to create a simpler, apparatus. A White Paper is expected later this year. In the meantime, employers could be in for some turbulent times.
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