Change for the better
Published:  27 June, 2008

Employment law is constantly changing and running a business with even a small team can be a minefield. Expert Paul McFarlane looks at the thorny issue of workplace disputes and other legislative amendments

For most employers - small employers in particular - it is likely that the most significant upcoming legal change will be the Employment Bill's repeal of the statutory disciplinary and grievance procedures. These statutory procedures were introduced by the government only in 2004, with the aim of encouraging employers and employees to try

to resolve employment disputes in the workplace first , rather than going to an employment tribunal.

This was a commendable aim . Regrettably, however, the statutory procedures failed to achieve

it as they were seen as too prescriptive and complicated for employers and employees to follow and implement - even lawyers found them difficult to interpret.

That means the government has reverted to its pre-2004 position on dispute resolution. Employers and employees will be encouraged to follow the informal steps set out in a revised ACAS Code of Practice, to resolve issues before taking formal action.

However, it is worth noting that, while a failure to follow the new draft code does not make a person or organisation liable to proceedings, an unreasonable failure to comply with any provision of the code will entitle an employment tribunal to adjust any awards made in relevant cases by up to 25%.

The draft code sets out guidelines which encourage the following:

Issues should be dealt with promptly

Employers should act consistently

Appropriate investigations should be made

Grievance or disciplinary hearings should be carried out by managers not involved in the matter giving rise to the dispute

Performance issues should involve immediate managers

Employees should be informed and be able to put forward their case before any decisions are made

Employees have the right to be accompanied

Employees should be allowed to ­appeal

It is good practice for employers to keep written records.

With the possible uplift in awards of up to 25% in cases where there has been unreasonable non-compliance with the ACAS code, we would encourage employers to read the draft code - which can be found on the ACAS website, - before the consultation period ends on July 25, and submit any comments they have to ACAS.

Paul McFarlane is an associate at Weightmans

The latest legal changes you can't afford to ignore

Upcoming legislation following the Draft Queen's Speech

Minimum wage increases

From Oct 1 the adult minimum wage rises from £5.52 to £5.73; 18 to 21-year-olds from £4.60 to £4.77; 16 to 17-year-olds from £3.40 to £3.53.

Extending the right to request flexible working

This extends the right to request flexible working - currently only available to employees with children under six or a disabled child under 18 - to parents of children up to the age of 16.

Protection of temporary agency workers

Following an agreement between the TUC and CBI, the government intends to

ask the EU to agree legislation which will extend the principle of equal treatment to temporary agency workers who have worked for an organisation for at least 12 weeks.

Time off to train

The government intends to consult about introducing the right for employees to ask for time off to develop relevant skills.

Equality Bill

This says

public bodies must consider

the needs of the workforce and community they serve when developing employment policies, making public bodies more transparent; employment tribunals will be able to make recommendations to employers on working practices which will benefit their workforce; and existing positive action measures will be extended to allow employers to make their organisation more representative of the people they serve.


Tougher action on illegal migration and employment and extending tribunal powers to make recommendations in discrimination cases.

Legislation now in force

Sex discrimination regulations amendments

These widen the definition of sexual harassment and, in certain circumstances, make employers liable for the harassment of an employee by third parties - including customers. Pregnant employees will also enjoy greater rights.

Information and consultation regulations - extended to employers with 50 or more employees.

Occupational and personal pension schemes - employers with 50 or more employees must undertake consultation before making changes to such schemes.

Disclosure requirements for directors' remuneration - applies to cash-based remuneration in small companies and groups.

And watch out for

Employment Bill 2008

This has now reached the House of Lords report stage. It will repeal the statutory disciplinary and grievance procedures, and instead employment tribunals will have to consider whether employers have complied with a revised ACAS Code of Practice on discipline and grievances. The draft code is currently being consulted on - see to find out more - and the new rules are expected to come into force in April 2009. The consultation period ends on July 25.

Employment Retention Bill

This Bill, which had its second reading on June 20, would create a statutory right to rehabilitation leave for the disabled - but as a private members' bill it is unlikely to become law.

Working time regulations

There is a proposal that from April 1 2009 minimum statutory annual holiday for workers should increase from 24 to 28 days per year.

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