UK employees are now afforded a greater number of employment rights and protection than ever before. Employers have been faced with a continual stream of legislation resulting in changes to employment law and HR best practice and, as the number of Employment Tribunal claims continues to rise (as employees become more and more aware of their rights), employers are left to wonder what benefit, if any, new employment legislation will offer them.

The most recent, and significant, development in the UK is the Employment Act 2002. The Act covers a number of areas and its provisions will come into force in stages.

Although many employers view the Act as “an employee’s charter”, providing employees with even greater rights while employers, especially small employers, will have greater burdens, the Act does in fact provide employers with a number of benefits.

Statutory dispute resolution procedures
Disciplinary and dismissal procedure
The Act introduces, for the first time, statutory disciplinary and grievance procedures, which will be implied into all employees Contracts of Employment. The procedures are due to be brought into force by regulation in late 2003.

However, the advice to employers must be to implement the changes as soon as possible, to ensure that human resources practice and procedures are up to date when the changes materialise. Although at first glance the statutory requirements may seem burdensome for employers, they do, in fact, go a little further than that which should already be best practice, requiring employers to notify employees of allegations in writing, convene a meeting to enable the employee to state his or her case, and to provide the employee with the means of appealing against the disciplinary decision.

Provided employers follow the statutory procedure, fewer dismissals should be “unfair” as a result of procedural irregularity, resulting in a drop in tribunal claims and greater employer confidence in dealing with such issues. A modified procedure is provided for dealing with gross misconduct.

Grievance procedure
The statutory grievance procedure introduced by the Act follows a similar format, requiring the employee to provide the employer with a written “Statement of Grievance”, the company to convene with the employee a meeting to address the issue and a procedure for appeal following notification of the company’s decision. A modified procedure is provided for use by any former employees.

The significant advantage of the new procedure to employers is that, once in force, employees will be required to follow the first step of the grievance procedure by sending the Statement of Grievance (and show that 28 days have elapsed since doing so) before presenting a complaint to the Employment Tribunal.

This should act as an early warning system and afford employers the opportunity to address grievances from current and former employees before finding themselves faced with employment tribunal proceedings.

In addition to the introduction of statutory dispute resolution procedures, the Act paves the way for reforms to the employment tribunal system, including an overhaul of the costs system. It is hoped that this will assist in reducing the number of frivolous claims brought by disgruntled employees.

Fixed term workers (prevention of less favourable treatment) regulations
These Regulations introduced on 1 October 2002 include two prohibitions: a prohibition on less favourable treatment to fixed term workers as compared to comparable permanent employees; and the prohibition on successive fixed term contracts.

The prohibition on less favourable treatment means that fixed term employees have the right not to be treated less favourably than comparable permanent employees simply because they are employed for a fixed term, unless that different treatment can be objectively justified. The general rule will be that entitlements should be pro-rated unless it is inappropriate.

Fixed term employees will be entitled to compare either the individual terms of their employment or the overall terms with the permanent employees and any difference found in individual terms will be objectively justifiable only if the overall terms are at least as favourable.

The prohibition on successive fixed term contracts means that any employee employed pursuant to a fixed term contract, who has accumulated four years continuous service and whose contract has been renewed or re-engaged, will on the commencement of that new contract, become a permanent employee unless his or her continued employment on a fixed term contract is objectively justified.

Although the benefit to employers of these Regulations may be less obvious, it should mean a greater consistency in employment terms throughout workforces, lowering the risk of inadvertent discrimination. It is also likely to result in company policies and procedures, such as disciplinary sanctions, being applied more consistently to all employees, consequently reducing the risk of “procedurally unfair” dismissals.

Family-friendly provisions
Maternity, Paternity and Adoption Leave
The rights introduced by the Act which are expected to come into force in late 2003 include extending the entitlement to Ordinary Maternity Leave to 26 weeks (6 weeks at 90% pay and then 20 weeks at £100 per week) for qualifying employees and a further 26 weeks unpaid Additional Maternity Leave for qualifying employees.

The Act also introduces the right to two weeks paid paternity leave for male and female employees who are not the primary carer, at the rate of £100 per week, to be taken within 56 days of the baby’s birth. There are also provisions relating to adoption.

The adoption leave provisions are similar to those for maternity leave, permitting employees to take 26 weeks Ordinary Adoption Leave paid at the rate of £100 per week, followed by 26 weeks unpaid leave. The introduction of adoption leave goes some way to levelling the balance somewhat between natural mothers and adoptive parents, reducing the risk of resentment within the workforce and, arguably, the risk of disability discrimination claims from women unable to have children due to a disability.

From an employer’s perspective, it is hoped that these provisions will result in a more stable workforce, resulting in lower recruitment and training costs. It is believed that the more generous the level of maternity leave offered, the higher the proportion of women who return to work.

The right to flexible working?
Qualifying employees will have the right to apply for a permanent change to their terms and conditions of employment to enable them to care for a child in respect of whom they satisfy the eligibility criteria. Contrary to popular belief, it is not a right to flexible working. It simply places a legal requirement on employers to properly consider any application made by a qualifying employee within the strict timetable specified in the Regulations.

Although there are a limited number of grounds for refusal, these are relatively wide ranging, covering matters such as the burden of additional costs, detrimental impact on customer demand, quality or performance or insufficient work loads during the requested period.

It is therefore unlikely that, where there is a legitimate business interest to protect, employers will be compelled to grant employee requests for flexible working. The Regulations are likely to mean that more qualifying employees will remain in employment, resulting in greater diversity and availability of skilled employees, and even where requests are refused, employees should feel that their request has been given appropriate consideration.

Although the Act does introduce a significant number of changes, it should not be viewed in a vacuum but as part and parcel of the significant legislative changes that have been introduced to enhance the rights of individuals in the workplace in recent years. The Act forms part of an overhaul of UK “social” legislation following on from the Human Rights Act 1998 and it is designed to abolish the rather informal attitude adopted by some UK employers in the past, and to bring working practices in the UK more into line with Europe.

Magrath & Co
Magrath & Co is a niche corporate immigration and employment law firm offering specialist advice. The firm is recognised as a “top three” leading corporate immigration firm in The Legal 500 and Chambers and Partners directories, and partners Chris Magrath, Sharmila Mehta, Ros Morris and Ben Sheldrick are recognised as leaders in this field.

As one of the first commercial immigration departments to be established in London, our integrity is recognised by both the immigration authorities and our colleagues in other law firms both in the UK and overseas, facilitating the smoother transition of work permit applications, applications for citizenship and immigration appeals. In particular, the practice has close transatlantic links, working with companies who need to transfer directors or other staff from the UK to the US or vice versa.

The firm is led by the Senior Partner Chris Magrath, who is an outstanding employment lawyer with a specialism in corporate immigration work. He has developed Magrath & Co to provide a cutting edge corporate immigration service. His ethos is to deliver a partner-led, high quality and pro-active legal service. He is assisted by the largest corporate immigration team in London. Chris leads our employment department with partner, Jessica Knight, Associate Adele Martins, and solicitors – Michael Sissons, Kerry Candy and Robert Starr.

www.magrath.co.uk