Jenny Wotherspoon and Anoushka Edwards consider how recent legislative changes will affect employers in the marketing and advertising sectors.
Law stated as at: April 2009
April 2009 saw a raft of new employment legislation including the extension of the right to request flexible working and the repeal of the much maligned statutory dismissal and grievance procedures. Jenny Wotherspoon and Anoushka Edwards consider how these changes will affect employers in the marketing and advertising sectors.
1. Repeal of the Statutory Dismissal and Grievance Procedures ("SDGP")
By far the most significant of this month's developments is the repeal of the SDGP with effect from 6 April 2009. The SDGP set down a formal three stage process that employers were required to follow in dismissal and grievance situations. A failure to follow these procedures would result in an increase in compensation of between 10%-50% and a finding that the dismissal was automatically unfair.
Many employers in the marketing and advertising sector found that the procedures were overly complex and instead of encouraging disputes to be resolved informally in the workplace, as intended, they led to an increase in litigation.
The SDGP have been replaced by a new ACAS Code of Practice (the "Code"), which sets out the core principles that employers should work towards when dealing with any disciplinary, dismissal or grievance issues (expressly excluding redundancies and expiry of fixed term contracts). The Code is not legally binding, however, Employment Tribunals will be entitled to take it into account when considering whether a dismissal was fair or unfair. Employment Tribunals have the discretion to adjust any compensation by up to 25% where there has been an unreasonable failure to follow the Code, however, any such failure will not lead to the dismissal being deemed to be automatically unfair.
Employers should bear in mind that the SDGP continue to apply in relation to disciplinary and grievance matters which were commenced or have their origins before 5 April 2009.
What does this mean for employers in the marketing and advertising sectors?
The Code sets out the following core principles that employers should follow (where it is fair and reasonable to do so):
- Informal resolution of disputes is encouraged;
- Clear rules should be developed for disciplinary and grievance situations;
- Issues should be dealt with promptly;
- Employers should act consistently;
- An investigation should be conducted where appropriate;
- A manager not involved in the dispute should conduct any disciplinary or grievance hearing;
- Written notification should be given to the employee of the basis of the issue (including witness statements and other written evidence);
- Employees should be given the right to call relevant witnesses;
- Written notification should be given to the employee of the outcome;
- The employee should be given the right to appeal (to a different manager if possible); and
- The employee should be afforded the statutory right to be accompanied to the disciplinary meeting or grievance meeting and any appeal hearing.
There are some potential areas of uncertainty including who are the appropriate "witnesses" an employee can "call" to a disciplinary meeting. There is no definition of witnesses which could potentially include third parties, such as customers, clients, contractors etc. However, it is limited to "relevant" witnesses and we anticipate that whether a witness is relevant may be an area of dispute in the future.
- Review the Code and applicable ACAS guidance;
- Consider whether or not existing policies and procedures require amendment;
- Consider re-fresher training for managers on handling performance, disciplinary and grievance issues; and
- Consider whether someone in the organisation should act as an informal mediator to encourage the more informal resolution of disputes.
2. Flexible Working
The right of an employee to request flexible working to care for a child was extended on 6 April 2009 so that a request may be made in respect of a child aged under 17 (previously a request could only be made in respect of a child aged under 6). It is still the case that an employee may request flexible working to care for a disabled child aged under 18. The procedure for dealing with such requests remains the same.
3. Increase to Statutory Sick Pay, Maternity, Paternity and Adoption Pay
On 6 April 2009, the weekly rate of statutory sick pay has been increased from £75.40 to £79.15. The prescribed weekly rate of statutory maternity, paternity and adoption pay has also been increased from £117.18 to £123.06
4. Increase to Minimum Holiday Entitlement
On 1 April 2009, statutory minimum paid holiday was increased from 4.8 to 5.6 weeks (i.e. from 24 to 28 days for those working a 5 day working week). This entitlement includes bank holidays.