The Employment Rights Bill 2006 seeks to put an end to the statutory disciplinary rules and procedures (dismissal, disciplinary and grievance) that had been bought in by the Employment Rights Act 2002.
This bill has been welcomed by most employers who seem to find the statutory procedures as a mechanism that costs the business a lot of money to implement and in reality is a loss that most small organisations are unable to bear.
However, the reality is that these procedures whether you like them or not, gave, the employees more protection against dismissal and also a more dignified way of terminating an employees contract of employment.
The procedures made it a statutory obligation for employers to have a formal meeting with the employees first to discuss the reasons for contemplating dismissal, with the employees having a right to have a representative present at the meeting, and, the right to know the evidence the employer had for any alleged misconduct, before the employer was able to utilise any of the options relating to warning an employee for any alleged misconduct in the employment relationship.
It also gave the employees opportunity to rebut the allegations made against them and the opportunity for the employers to have to prove the misconduct they had been alleged to have been guilty of. Employers argued that the three stage procedures which also gave an opportunity to appeal any initial decisions made at the first meetings, were too expensive for the business to implement and too difficult to understand, as there were penalties involved at the tribunal if they had not been followed in a proper fashion, which was good for lawyers but not for smaller businesses that were already struggling.
Further, the procedure's and the notice period for holding such meetings cost the organisation too much, and, too much time and resources were spent holding these meetings which in reality prolonged the inevitable.
The disciplinary meetings themselves were conducting in a fashion which was perceived to be detrimental in maintaining the employer and employee relationship due to the aggressive and sometime non conciliatory way that that the meetings had been conducted. It left both the employer and employee feeling resentful once any course of action had to be instigated via the use of the disciplinary procedures. Further, there was no turning back once this route had been taken, and, some employers stated that sorting the problem out after work at the pub with a couple of drinks post the meetings was no longer an option as the employer and employees were left feeling very resentful with each other after the formal meetings.
The employers also resented the procedures as a failure to follow them resulted in an automatic award of compensatory damages in the tribunal for up to twenty five per cent. Again this was another economic burden small businesses were unable to bear the cost of.
The Employment Relations Bill 2006 which is yet to be approved by the House of Lords proposes to put an end to the three step disciplinary process that needs to be followed by employers and the new Statutory Disciplinary procedures have much more of an emphasis on mediation and arbitration. It advocates for the use of a mediator and thus a more conciliatory approach to the whole process in order to minimise any animosity created by the statutory procedures. It also removes the fixed conciliatory periods imposed on ACAS once a tribunal claim has been lodged at court.
The Bill also formally recognises that ACAS are to act as official arbitrators when a dispute arises in the employment relationship in order to act as third party mediators in any dispute and to have a more harmonious relationship for the future. It is envisaged that the new Act will enable the employers to tackle issues using a less acrimonious method then the statutory procedures, which, have been viewed as not helping to maintain a lasting relationship between employers and employees.
The key provisions contained in the Employment Bill are: -
The abolition of the statutory dismissal and grievance procedures;
Extending ACAS 's powers of conciliation;
Tribunals can increase awards by up to 25% if an employer unreasonably fails to comply with a code of practice;
Extending ACAS 's powers of conciliation and removing the fixed conciliation periods;
Compensation for consequential loss in unlawful deduction of wages and redundancy claims.
Only once we have sight of the Act will we know for sure whether or not it will alleviate the problems outlined in the review taken by Michael Gibbons that the existing procedures were too much of a liability on employers and employees a like.
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