HMO QUARTERLY EMPLOYMENT BULLETIN
March 2009 

EMPLOYMENT ACT 2008 & ACAS CODE OF PRACTICE
After four years one of the most unsuccessful pieces of legislation in recent time is repealed. The Employment Act 2002 (Dispute Resolution) Regulations 2004 came into force in October 2004 and brought in a mandatory three step procedure for grievance and disciplinary matters as follows:

1. Letter
2. Meeting
3. Appeal Meeting

The legislation provided a 3 month extension on time limits where this dispute resolution procedure was followed.

A failure to comply with the statutory rules meant that:
• Tribunals were obliged to increase compensatory award by 10-50%
• Dismissals were rendered automatically unfair
• Tribunals could not hear employee complaints unless a written grievance was submitted

The system was very unsuccessful and created a number of difficulties for employers and employees.  It led to a flood of case law including disputes as to what actually constituted a grievance.

The provisions of the Employment Act 2008 come into force 6 April 2009.  Its key changes are:

• The repeal of the mandatory three step system for Grievance and Discipline matters
• The repeal of automatically unfair dismissals and increased compensation awards
• The repeal of the requirement for employees to submit a written grievance before submitting a tribunal claim
• Repeal of three month extensions

Under the new system:

• The Tribunal will take the contents of the ACAS Code of Practice on Discipline and Grievance into account in unfair dismissal cases when deciding whether a party acted reasonably.

• A Tribunal will be able to increase or reduce awards by up to 25% where it considers there has been an unreasonable failure to follow a relevant Code of Practice

• Employers still have a duty to respond to written grievances raised by employees

The new ACAS Discipline and Grievance Code is currently in draft form and comes into effect from 6 April 2009.  It applies to discipline and grievance, not redundancy (there is a pre-existing ACAS guide to redundancy).  There will be a separate more detailed guidance booklet but Tribunals will not be obliged to follow this.

ACAS sets out key issues for disciplinary procedures including:
• Acting promptly
• Establishing the facts of each case by investigation
• Informing employees of possible consequences and providing copies of written evidence
• Right to be accompanied (as before)
• Acting  consistently by applying  similar sanctions/penalties to similar cases

Importantly the same 3 step format applies but a there are a number of new procedural requirements suggested by ACAS.  For example:
• A requirement to produce copies of written evidence
• Providing the opportunity for witnesses to be called.
• A suggestion that employers can make their decision in the absence of an employee who persistently fails to attend a meeting without good cause

Whilst suggesting a standard of reasonable behaviour the Code recognises “… it may sometimes not be practicable for all employers to take all of the steps set out”.  Employment Tribunals will be able to take into account the size and resources of an employer giving some leeway for smaller employers.  This is an important change.

Employers will need to be familiar with the Code and follow it to maximise prospects of defending an unfair dismissal claim.  Existing procedures will require some fine tuning.

RELIGIOUS DISCRIMINATION
In the recent case of Chondol v Liverpool City Council it was held that dismissing someone on grounds of imposing their religious beliefs on another did not amount to unlawful discrimination.

In this case a carer asked a service user if he believed in God and went to church.

It was accepted that there was a distinction between dismissal for possession of religious belief (which is unfair and discriminatory) and dismissal for the inappropriate imposing of those beliefs on others. 

SPELL IT RIGHT
In the case of Anthony Chowles t/a Granary Pine v West, it was held that where a Respondent’s name had been spelt incorrectly and his address was wrong on the Tribunal claim form (and that was the name and address to which the Claim form was posted), the claim had not been sent within the meaning of the Tribunal Rules.

In such circumstances it was not necessary to investigate whether the intended Respondent had received the claim form and a default judgment could be set aside.

CARE HOMES AND CARE WORKERS ; POVA LIST UNLAWFUL  ?
The POVA (Protection of Vulnerable Adults) list places a burden on Care Homes to add an employee to the POVA list held by the Secretary of State if they have been dismissed because they have harmed or put at risk of harm a vulnerable person.

This removes the possibility of employment with another care provider.

Regrettably employees are often placed on this list with limited enquiry (and without a right to make representations). There is an appeal process but this takes a number of months.

The House of Lords has held that the list is inconsistent with the human right to a fair trial has issued a Declaration of Incompatibility. Unfortunately the POVA legislation remains effective until amended by parliament.

HOMOPHOBIA AGAINST HETEROSEXUALS
In the case of English v Thomas Sanderson Ltd it has been held that someone who suffers homophobic 'banter' at work, even though his work colleagues know him not to be gay, is still protected by the harassment provisions of the Employment Equality (Sexual Orientation) Regulations.

The banter arose because Mr English went to a boarding school and lived in Brighton.

TRIBUNAL AWARDS
From 1 February there has been an annual increase in tribunal award limits:

• The calculation of a week's pay at £350 (note this is also the figure for redundancy calculation )
• maximum basic award (and statutory redundancy payment) £10,500
• maximum compensatory award - £66,200

HOLIDAYS
From 1 April 2009 the statutory holiday entitlement goes up to 5.6 weeks (28 days for someone working a five-day a week or more).

STATUTORY PAY
From 5 April 2009 the rates of statutory maternity, paternity and adoption pay increases to £123.06 per week.

The standard rate of statutory sick pay increases to £79.15 from 6 April.

Disclaimer

The contents of this article are for the purposes of general awareness only.  They do not purport to constitute legal or professional advice.  The law may have changed since this article was published.  Readers should not act on the basis of the information included and should take appropriate professional advice upon their own particular circumstances.