Most of you will know that there has been a long-standing arrangement that changes to employment law are only made twice a year, in April and October. That would be fine if so many other areas did not impinge on employment relationships. Health and Safety and Immigration law have no respect for the April and October arrangement so we have to keep an eye on those throughout the year.
In January the Health and Safety (Offences) Act 2008 comes into force and raises the maximum penalties for certain Health and Safety offences – this legislation brings with it the potential for a two year jail sentence an unlimited fine or both together. The actual Health and safety at Work Act 1974, which you will all be familiar with, doesn’t change, there are just tougher penalties for breaches.
In April the Employment law changes start to take effect and from the 1st all staff will be entitled to increased statutory holiday. You will remember that a year ago holiday entitlement for a person working the ‘normal’ five day week increased from 20 to 24 days with a second increase due in the future. Originally it was expected that the increase to 28 days would happen in October 2008, but a short stay was granted and this now comes into force at the beginning of April. Remember, this legislation applies to all workers, so you need to pro-rata the increase for you part time or atypical workers. Of course you can still count public and bank holidays as part of this entitlement, so if you give your staff 20 days annual leave and the 8 statutory holidays you will not need to make any amendments.
Perhaps the biggest change in Employment legislation comes with the Employment Act 2008 which repeals the statutory dispute resolution procedures. I don’t suspect for one moment that anyone in the country is going to miss the Dispute Resolution Regulations; they were, without doubt, an unmitigated failure. These regulations were designed to reduce the number of claims ending up at the Employment Tribunal; actually they created a raft of claims and case law in their own right. The Employment Act comes into force on 6 April until them we must all continue to follow the dispute resolution procedures; from the 6th onwards we revert to the pre 2004 situation, where we all follow the ACAS code of conduct. Those of you who are new to employment legislation or those that need a refresher should go to the ACAS website at www.acas.org.uk , there you will find the new code of conduct and relevant advice. There will also be a fairly complicated transition period as we move between the two procedures.
It is important that employers follow the code of practice as the new legislation allows for 25% uplift on any compensation awarded by the tribunal if the code has not been followed, of course, we will have to wait for more case law to see how this has an effect on cases before the tribunal.
New rules of procedure for Employment Tribunals will also come into force on 6 April 2009, some of the changes are designed to accommodate the repeal of the Statutory Dispute Resolution Procedures, but there will also be some other significant changes. One of the biggest changes to affect employers is a change to the rule on default judgments. Presently an Employment Judge can give a default judgment to a claimant if the Respondent does not lodge an ET3 within 28 days (if he thinks it is just and equitable to do so). The new legislation seeks to remove that judicial discretion and states that if a response is not filed within 28 days an Employment Judge must issue a default judgment in favour of the Claimant. The new regulations go even further and state that the judge should also provide the remedy, although it is difficult to see how that would be possible as no-one would have presented a schedule of loss by that point. Unfortunately, even though these regulations are scheduled for 6 April at the time of writing they are still in draft form, we wait with baited breath to see the final version.
Also in April the right to request flexible working is extended to all parents of children up to the age of 16 years. Currently the right is only available to parents with younger children or carers of adults. This latest increase means that anyone with a child up to school leaving age will be able to request flexible working. It is, perhaps, important to remind employers that flexible working can only be refused on limited specific grounds and it is important that you seek advice before you act on any such requests.
A new right is to be introduced to allow staff to request time off to undertake training. This new right will be modelled on the right to request flexible working and all employers will have to seriously consider the request. The employer will be able to refuse requests for time off for training if they can show a good business reason to do so and while they have to seriously consider the request for time off it does not need to be paid, nor will the employers be expected to meet the cost of any training. At the time of writing this article the date for the introduction of this new right has not been set, but it is widely expected to come into force in April 2009.
The 4th tier of the immigration points system is set to be introduced in spring 2009, again at the time of writing no date has been set, but all employers must be aware that employing foreign nationals from outside the EEA is becoming more and more difficult and there are more onerous checking responsibilities for employers. It is vitally important that any employer seeking to engage foreign workers takes the relevant professional advice.
These are some of the major changes that employers need to be aware off in the early part of 2009 there are other changes expected later in the year and specifically in October and hopefully I’ll be able to advise on those changes nearer the time.
Barrister, Premier Legal LLP