The new ACAS Code of Practice - introduction
April 6, 2009
Anyone involved in HR or employment will know that as of today a new regime for the management of workplace disputes will be implemented in UK legislation. The Statutory Dispute Resolution Regulations which were introduced in October 2004 have been repealed and replaced with a new ACAS Code of Practice on Disciplinary and Grievance Procedures. The old procedures were introduced to try to reduce the amount of claims being made to employment tribunals; an aim which has spectacularly failed, with last year seeing an increase of more than 40% in claims on the year before. This week’s posts will look at all the different aspects of the new code of practice, how it differs from the old system of handling discipline and grievance, and what your company procedures should contain going forward.
Compliance
One of the main reasons that claims rocketed under the old system is the strict compliance to statutory and company procedures that was obligatory; the focus on procedural compliance has led to claims for unfair dismissal being won and lost on a procedural technicality, regardless of whether the dismissal was reasonable or fair; and this point is a key factor of the new system being implemented today. The new ACAS Code of Practice is not a legally binding document; it is not statutory and therefore does not hold the same legislative weight in a tribunal as the Statutory Dispute Resolution Regulations, so a failure to follow the code in handling a dismissal does not automatically mean the dismissal was unfair. However in saying this, tribunals will take the code into account when looking at how a dismissal or dispute was handled in the workplace; so organisations will have to be sure they follow the guidelines in the code, or have a strong justification for not following a particular aspect of it.
Compensation
Another change in the system relates to the relevant uplift or reduction in compensation awarded for failure to follow the recommended procedures. Under the old system, if a company or employee failed to follow the statutory procedures, the tribunal is obliged to uplift or reduce the compensatory award by between 10% and 50%. There is no discretion in this – the tribunal has to make the uplift or reduction for a procedural failure. In the new scheme, the tribunal can uplift or reduce the compensation if it feels there has been an unreasonable failure to follow the code of practice – but by no more than 25%. This part of the tribunal’s role is now discretionary; and means that even if a company fails to follow part of the code, the tribunal may feel that this wasn’t an unreasonable failure and may therefore not award any increase in compensation. This is most certainly one of the areas of the new system that will be tested and defined by case law
The next few articles will focus on disciplinary procedures under the new code of practice.
Opt out of Working Time Directive survives again
April 3, 2009
There has been so much debate in recent months about the UK’s continuing fight against EU pressure to scrap the ability for UK workers to opt out of the 48 hours maximum working week. The Working Time Directive is a piece of legislation designed to ensure people do not work too much as this could affect their health and safety, and also covers the amount of holidays workers are entitled to. The UK, and 14 other EU countries have kept an opt-out option for their workers, which means that companies can have flexibility within their workforce to respond to different organisational needs, and for workers to have more choice if they wish to work longer and earn more.
In February I wrote about the argument being put forward by MPs and Union leaders which is that the opt-out is continuing to encourage the long hours culture that we have such a problem with in the UK. However the overriding feeling appears to be that the country should fight to keep the opt-out, and this is what Ministers have been doing in the European Parliament in Brussels this week.
On this occasion, the UK has managed to resist the pressure to drop the opt-out because negotiations between the council of ministers and MEPs failed to provide an agreement, with the main sticking point that neither side would budge on being staff on-call time (i.e. whether the time people spend on-call, e.g. over a weekend, should count towards the maximum number of hours worked in a week). Because no compromise could be reached, it looks like the opt-out will remain for the time being at least. Employment Relations Minister Pat McFadden said:
“We have said consistently that we would not give up the opt-out and we have delivered on that pledge,”
This decision will be welcomed by a lot of businesses that use the opt-out to manage different periods of business, and employees that rely on the income their overtime above the 48 hour limit provides. However Unions and a number of MPs that believe scrapping the opt out will help the county move away from a damaging long hours culture will be disappointed in the outcome of this weeks events in Europe.
Health and safety risk assessments
April 2, 2009
My colleague is currently reviewing the management of health and safety within our company, and one major part of this is carrying out a full assessment of the potential hazards and risks within the building and employees’ jobs.
The Health and Safety at Work Act 1974 requires all employers to ensure the health, safety and welfare of employees and workers at all times, and part of this is that the employer must assess potential risks, and take steps to remove or reduce those risks. Health and safety legislation is becoming more complex all the time and the consequences and penalties for employers that do not comply or have the unfortunate event of an accident (or worse still, fatality) which leads to a claim are increasing each year.
As my colleague has worked through the risk assessment, it has amazed me just how many potential hazards there are in the building – from loose electrical cables that could cause a trip hazard, to overloaded shelves, to the location of water coolers (one of ours is in a space that has a laminated floor and therefore any spills instantly become a slip hazard). The company I work for operates in a standard office environment, and there are literally hundreds of hazards, so the risk assessments for a workplace such as a warehouse or factory will be an enormous task to take on.
Once the assessment has taken place, an action for each risk is required to ensure the risk is reduced or eliminated. For example with the water coolers, the answer could be to move the cooler to a safer place; however it is in the reception area and therefore needs to stay there for visitors and customers to use, so the next best action is to give the nearest employee (the receptionist) the responsibility of monitoring leakages and using appropriate ‘wet floor’ hazard signage and mopping spills immediately.
Some companies use an external consultant to carry out complete risk assessments and create action plans, however this can be expensive and costs should be weighed up against carrying this out in-house, and against the potential claim costs if it is not done properly (as is often the case if health and safety is tagged onto someone’s day job).
For more information on health and safety and risk assessments, look at the Health and Safety Executive (HSE website).
Retracted resignations – who is the April fool?
April 1, 2009
What did you get in the post today? Amongst all the usual rubbish such as promotional pens and mugs from desperate recruitment agencies, invitations to attend astronomically priced training and other general bits of junk mail, did you receive any letters of resignation? Thankfully I didn’t, but one of our employees just said to me that he was considering handing his notice in as an April fools prank, but decided against it because he wasn’t sure if we would accept it and not let him retract it - which made me chuckle quite a lot (as it was just a joke)! But the April fools joke and its potential to backfire made me think about how organisations should deal with a situation where an employee resigns and subsequently wishes to retract the resignation. Where do employees and employers stand on this issue?
There was an interesting case at the Employment Appeal Tribunal recently on this subject. In Ali vs Birmingham City Council, Mr Ali had resigned due to personal circumstances. The employer actually gave Ali a ‘cooling off period’ of 30 minutes to reconsider, but after consideration he decided he definitely wanted to resign and the company accepted this. Four days later Ali asked for the resignation to be retracted, but the company said that it was too late and the resignation stood. In the tribunal, Ali argued that he had been under pressure and couldn’t think clearly at the time of his resignation, but the EAT upheld the tribunal’s decision that he had been given enough time to consider the resignation and therefore had not resigned in the ‘heat of the moment’. Also his resignation had been ‘unambiguous’, i.e. he had made his intentions very clear, and therefore the employer was entitled to accept this as a proper resignation.
There are some special circumstances in which an employer cannot rely completely on words of resignation – even if they are unambiguously given. These have been set by the Court of Appeal and are when the employee is immature, when he/she has been pushed into the resignation by the company, or when it is considered that the resignation was in the heat of the moment. When the third of these circumstances is apparent, the employer should give a cooling off period, which should be around one or two days; so even if the EAT had found that Ali resigned in the heat of the moment his return date of four days later would have been too late.
So in conclusion, if our employee had resigned as an April fools prank, and then owned up to the joke straight away, the company wouldn’t have been able to take the initial resignation as final, although it might have been prudent to turn the joke around on that individual so that they thought for a short while that we could do! All in all I think it’s probably a good thing that the idea of playing such a prank was itself only a silly joke to amuse ourselves with!