Dispute Resolution Procedures – Consultation on secondary legislationMonday, July 14th, 2008
The Employment Bill, currently before Parliament, includes measures to repeal the statutory dispute resolution procedures and replace them with a new regime involving an Acas statutory code of practice on disciplinary and grievance procedures.
Other related reforms, which would involve secondary legislation, are also being considered by the government and the Department for Business Enterprise and Regulatory Reform (DBERR) has published a consultation document that seeks views on the following changes.
1. Compromise agreements: For an agreement to be lawful, the employee must have received advice from an “independent advisor”. These currently include qualified lawyers, legal executives, certified trade union members and certified advice centre workers. They must be competent to give advice, have insurance or professional indemnity cover, and must be independent, i.e. not employed by the employer. The proposal is that the list of permitted advisors should be extended to include qualified members of the Chartered Institute of Personnel and Development (CIPD), many of whom already play a role in negotiating compromise agreements.
2. Interest on unpaid tribunal awards: Interest, at 8%, is currently charged on unpaid employment tribunal awards, although the date from which it is accrued is different in the case of awards for discrimination and equal pay cases than in other cases. The proposals are to allow the interest rate to “float”, e.g. at a defined rate above the Bank of England base rate, and to apply the accrual date used for discrimination and equal pay cases to all situations, namely from the day following the tribunal’s decision unless full payment is made within 14 days (as set by decisions of the European Court of Justice).
3. Recommendations in discrimination cases: Employment tribunals are currently able to make recommendations that an employer change policies and practices where it has been found to have discriminated against an employee, in order to prevent the discrimination continuing. The proposal is to extend that arrangement to situations where the employee has left the employment but other employees may also be vulnerable to the same kind of discrimination. There would not be any penalty if the employer did not make the recommended changes but failure to do so would be taken into consideration if another employee subsequently made a related claim of discrimination.
4. Determinations without a tribunal hearing: The proposal is that tribunal claims in cases claiming unlawful deductions from wages, breach of contract, redundancy pay, holiday pay and the national minimum wage could be considered by an employment judge without a hearing. Such a written determination would require the consent of the parties and there would be no monetary limit on eligible claims, other than for breach of contract cases which are limited to an award of £25,000. Decisions may be appealed to the Employment Appeal Tribunal.
5. Holiday pay claims heard by judge sitting alone: An employment tribunal judge is able to hear cases alone in a number of jurisdictions, for example, national minimum wage cases. The proposal is to extend this arrangement to cases involving entitlement to statutory holiday pay.
6. Changes to tribunal procedures regulations: A number of minor amendments are proposed, related to interim relief hearings, time limits, default judgements, electronic communications, withdrawal of proceedings, equal value hearings and qualification periods for employment judges.
7. Transitional arrangements: The commencement date for the new dispute resolution procedures is expected to be 6 April 2009. The proposal is for the existing statutory procedures to apply to cases where the act leading to the grievance has started or taken place and/or the employer has contemplated taking or started disciplinary action prior to that date.
8. Tribunals Service transformation: A number of measures intended to improve the effectiveness and efficiency of the Tribunals Service, including the appointment and role of Tribunals Presidents, are proposed.
The closing date for the consultation is 26 September 2008.
Dispute resolution: secondary legislation consultation
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