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FL Memo Ltd © 2008 |
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Employment Memo 2008 Newsletter Issue 2 |
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Employment Act 2008 The Employment Act 2008 completed its passage through Parliament on 13 November. Most of its important provisions are likely to come into force on 6 April 2009, but this still has to be confirmed. The best publicised provisions are those which repeal the compulsory discipline and grievance procedures. The Act also formally removes fixed conciliation periods, although in practice Acas has been disregarding these since April 2008, and changes the scope of Acas officers’ duty to conciliate in cases where proceedings have not yet been started. Under the new rules they will have a discretionary power to offer conciliation at this stage although they can refuse to do so, even if both parties request it, without having to give a reason. Alongside the new provisions, a new Acas Code of Practice has been published in its final form. It will remain a draft for a brief period until it has been approved by Parliament. The Code will be supplemented by an Acas guide. Finally, to further facilitate early resolution of disputes, tribunals will be able to decide cases without any hearing if all the parties have consented in writing. Consent of parties is not required with regard to default judgments issued without a hearing. The Act also gives tribunals the power to order employers to compensate workers for any financial loss sustained as a result of unlawful deduction from wages or non-payment of redundancy awards. With regard to other provisions, the Act also changes the way the national minimum wage is enforced, enhances the enforcement regime under the Employment Agencies Act 1973 and amends trade union law to give more scope to exclude individuals from membership of a union on the grounds of their political affiliation.
Abolition of compulsory disciplinary and grievance procedures The current system of compulsory minimum procedures backed by sanctions, including automatic unfair dismissal for failing to follow procedures, the barring of claims, and adjustments in compensation levels will be replaced by: - an obligation on both employer and employee to comply with the new Acas Code of Practice as tribunals will look at whether an employer has followed the Acas Code when deciding whether a dismissal is procedurally fair; and - a power to increase or decrease any award by up to 25% if a party unreasonably fails to follow the Code. A further important change is that the defence to a procedurally unfair dismissal that the employer would have dismissed the employee in any event (the Polkey reversal provision) will no longer apply. However, the tribunal will be able to reduce the compensation to be awarded for a procedurally unfair dismissal by up to 100% in accordance with Polkey to reflect the chance that the employer could have carried out a fair dismissal if he had used a fair procedure. This simplifies the current regime. Under the outgoing system, a Polkey reduction is made before any adjustment for failure to follow the statutory procedures, and it is presumed that the same approach will be adopted under the new system i.e. that any Polkey reduction will be made before an adjustment for an unreasonable failure to follow the Code. In contrast, the new Act specifically states that adjustments for failure to follow the Code should be made before an award for failure to provide a statutory statement of written particulars.
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