Employment Act 2002

Product Information

To what extent the greater use of workplace procedures will reduce the volume of tribunal applications remains to be seen. The government’s estimate that the reduction will be between 30,000 and 40,000 applications per year has been met with some scepticism, particularly from Labour Party peers during the House of Lords’ debates on the new legislation. In any event, the new employee rights introduced by the Act will themselves add to tribunal workloads, with the right to seek flexible working arrangements perhaps the most likely provision to generate a significant number of claims. More fundamentally, concerns have been expressed that the 'three-stage' statutory minimum procedures are too 'minimalist' to offer effective protection to employees. In particular, they do not meet the accepted standards set out in the current ACAS Code of Practice on disciplinary and grievance procedures. A range of improvements to employees’ existing parental leave rights ( UK9912144F) will take effect from April 2003. These include: award costs against a party’s representative for conducting the proceedings unreasonably (though ministers have made it clear that this will not apply in the case of representatives of 'not-for-profit' organisations, eg trade union officers); and In addition to the legislative measures contained in the Act, the government set up an Employment Tribunal System Taskforce to look at ways of making the tribunal system more efficient and cost effective ( UK0111105N). This issued its report in July 2002. Its main recommendations include the establishment of a high-level coordinating body to ensure greater coherence within the employment tribunal system and the promotion of best practice, and a greater emphasis on the prevention of disputes. Ministers have said that they will respond to the Taskforce’s recommendations in the autumn. Workplace dispute resolution

The Confederation of British Industry (CBI) and the Trades Union Congress (TUC) have both given mixed reactions to the provisions of the Employment Act.The Act sets out a similar three-stage grievance procedure, starting with a written statement of the employee’s grievance. The TUC has welcomed the enhanced parental leave entitlement and the statutory recognition of the role of union learning representatives. It is also broadly in favour of the requirement for companies to have minimum grievance and disciplinary procedures, but has been critical of the limited nature of the procedures set out by the legislation. Unions are unenthusiastic about other key parts of the Act as well. A resolution adopted at the September 2002 TUC conference ( UK0210101N) specifically criticised the Employment Act’s changes to employment tribunal law on the grounds that they are designed to deter employees from seeking to enforce their rights via a tribunal hearing. Commentary

an increase in the period of maternity leave to six months’ paid maternity leave followed by up to six months’ unpaid leave; The Employment Act essentially represents an uneasy trade-off between the extension of employee rights and measures to limit the use of litigation to enforce them. As a result, it is hardly surprising that neither the CBI nor the TUC is satisfied with the outcome. But there has also been criticism from within the legal profession of the Act’s provisions to limit recourse to tribunal hearings. Unusually, the President of Employment Tribunals (England and Wales), Judge John Prophet, publicly voiced concern that aspects of the legislation might violate the right to a fair hearing guaranteed by the Council of Europe's European Convention for the Protection of Human Rights and Fundamental Freedoms (see 'The Employment Act 2002 and the crisis of individual employment rights', Bob Hepple and Gillian Morris, Industrial Law Journal, September 2002). An Act to make provision for statutory rights to paternity and adoption leave and pay; to amend the law relating to statutory maternity leave and pay; to amend the Employment Tribunals Act 1996; to make provision for the use of statutory procedures in relation to employment disputes; to amend the law relating to particulars of employment; to make provision about compromise agreements; to make provision for questionnaires in relation to equal pay; to make provision in connection with trade union learning representatives; to amend section 110 of the Employment Rights Act 1996; to make provision about fixed-term work; to make provision about flexible working; to amend the law relating to matervkhnity allowance; to make provision for work-focused interviews for partners of benefit claimants; to make provision about the use of information for, or relating to, employment and training; and for connected purposes. Having completed its passage through Parliament, the Employment Bill ( UK0112104N) received royal assent on 8 July 2002. The Employment Act 2002 is a major piece of legislation. Its key themes are the enhancement of statutory rights designed to help parents balance work and family commitments, and the reform of employment tribunal procedures and workplace dispute resolution mechanisms in response to the rising number and cost of employment tribunal claims in recent years ( UK0108142N). It also includes provisions on a range of other issues, including equal treatment for fixed-term employees and time off for trade union learning representatives. The Act, and several sets of associated regulations, will be implemented in a number of phases over the coming year. increases in the standard rate of statutory maternity pay (SMP) and maternity allowance to the lesser of GBP 100 per week or 90% of the employee’s average weekly earnings;

The adoption leave provisions will mean that employees will have a right to take 26 weeks "ordinary" adoption leave, followed by 26 weeks unpaid additional adoption leave. The employee seeking adoption leave must produce a Matching Certificate from an approved adoption agency. The adoption can be of a child from overseas, but the child placed for adoption must be under 18. The leave can begin no earlier than 14 days before the expected date of placement and no later than the date on which a child is placed for adoption. The Act expands the legal requirements on employers to issue employees with a written statement of their main terms and conditions. Among other things, it removes the current 20-employee threshold that applies to the provision of information on disciplinary and grievance procedures. This means that all employers of whatever size will have to provide information on the statutory minimum disciplinary and dismissal procedures in the written statement. Where an employer fails to follow the statutory dismissal and disciplinary procedures a dismissal will be automatically unfair. The Act also specifies that an employer’s failure to follow a procedure other than the statutory procedure will not by itself make a dismissal unfair, provided the employer can show that following the appropriate procedure would have made no difference to the decision to dismiss.

Employers must then arrange a meeting within 4 weeks of the request to consider and discuss the request with the employee. Every employer must write to the employee within 2 weeks of that meeting with a decision, giving reasons if the application is objected. The employee can appeal within 2 weeks of the employer’s decision and the appeal must be heard within 2 weeks. Detailed provision on the operation of these rights will be set out in regulations. Consultation on draft regulations closed on 19 July 2002.

A modified, two-stage dismissal and disciplinary procedure will apply in cases of gross misconduct. Similarly, a modified, two-stage written procedure will apply to grievances on the part of former employees. Maternity leave is one which is included with the leave a mother should get when she has given birth to a child. In the UK a pula would get 26 weeks of paid leave for time they will need to spend with their child. Consultation on draft regulations containing detailed provisions on the operation of the new right closed on 10 October 2002. The regulations are due to take effect from April 2003. Employment tribunal reform

The paternity leave provisions will allow fathers to take up to 2 weeks’ paid paternity leave. It must be taken within a period of 56 days beginning with the date of the birth or the child being placed for adoption. Paternity and adoption leave will only be available to employees, who have continuous service with the same employer for at least 26 weeks by the 15th week before the child is expected to be born, or, by the week in which an agreed match for adoption is made. The wording of the draft Regulations is such that the parental and adoption leave provisions will extend to co-habiting and same sex partners. The Act introduces a number of changes to employment tribunal procedure. Among other things, it enables the secretary to state to make regulations authorising tribunals to: Text of the Employment Act 2002 as in force today (including any amendments) within the United Kingdom, from legislation.gov.uk.The Employment Act, which reached the UK statute book in July 2002, introduces new provisions concerning 'family-friendly' working, the resolution of individual disputes at the workplace, equal treatment for fixed-term employees and other matters. This feature summarises its main requirements and the timetable for their implementation, and looks at employer and trade union views of the new legislation. fixed-term employees should not be treated less favourably than comparable permanent employees on the grounds they are fixed-term employees, unless this is objectively justified; and The Government estimates that 3.8 million mothers and fathers will be eligible to make these requests. There is a target consent rate of 82%. The Government have said that if the target is not met, the policy will be considered and a review is promised in any event after 3 years. The Act sets out a procedure and timetable which employers must follow in responding to such an application, which will be fleshed out by regulations. The employer must arrange a meeting, within 28 days of receiving an application, to discuss the employee’s request, at which the employee may be accompanied by a representative. The employee must be informed of the employer’s decision within 14 days, and the employee has a further 14 days to appeal.