Stephen Bedeau believes practitioners have a tough job ahead of them to keep up with employment legislation. Stephen Bedeau is a barrister at Sovereign Chambers in Leeds and a part-time employment tribunal chairman.
A change of name and a mass of legislative changes herald the dawn of a new era for employment tribunals.
The change of name (from industrial tribunals) ushers in important legislation which increases the rights of employees and strengthens the position of unions. Of note is the National Minimum Wage Act 1998. From April 1999, the minimum hourly rate of pay for adults will be £3.60. The mechanics that control this rate will be the National Minimum Wage Regulations, which are not yet published.
Then there is the Public Interest Disclosure Act 1998 (or so-called whistle-blowers act), which entered the statute book on 2 July. Its main provisions are likely to come into force in spring next year and for the employee, this means statutory protection from dismissal or any other detriment that derives from protected disclosure. An employee who gives a disclosure to persons named in the Act will get protection if the disclosure refers to: a criminal offence; a person who fails to adhere to any legal obligation; a miscarriage of justice; a situation where the health and safety of a person is at risk; environmental damage; or concealment of the above. Protection is valid, regardless of whether the matter referred to in the disclosure is in the past, present or future.
Disclosure will be protected even if it is made to other agencies or people not named in the Act, so long as it was done in good faith and was a reasonable course to pursue in the circumstances. For example, a concerned employee need not disclose to his employer that a colleague's health and safety is being endangered if making this disclosure is likely to cause him or her some detriment.
If the employee is dismissed or suffers a detriment as a result of a protected disclosure, they will be entitled either to re-instatement or compensation.
Another important piece of legislation is the Employment Rights (Dispute Resolution) Act 1998, the provisions of which are likely to come into force in early 1999. In addition to renaming industrial tribunals as employment tribunals, the Act provides for: the appointment of legal officers to hear interlocutory matters; expanding the definition of those who can make a compromise agreement from lawyers to “relevant independent advisers”; employers and employees to refer their disputes to a binding arbitration scheme set up by the Advisor, Conciliation and Arbitration Service (ACAS). In addition, a wider use of “dismissal procedures agreements” is likely to curb the ability of employees to claim unfair dismissal in the same vein as section 110 of the Employment Rights Act 1996. Instead, the agreement will specify its own dispute resolution, such as arbitration. It also encourages employer and employee to make more use of internal appeal procedures and penalises them for not doing so.
The Acquired Rights Directive affects the position of employees when an undertaking is transferred and its provisions must be enacted by European Union member states by 17 July 2001. For the UK, this will mean amending the Transfer of Undertakings (Protection of Employment) Regulations 1981.
When its provisions are implemented, the Part-time Work Directive will afford part-time employees the same rights as those who work full-time. Member states have until April 2000 to enact the relevant legislation.
The working week comes under the microscope in the Working Time Regulations 1998. It fixes 48 work hours as the longest week and stipulates rest periods, night work and paid holidays. Breach of the provisions by employers can lead to civil as well as criminal proceedings. The regulations came into effect on 1 October this year. The Government's Fairness at Work White Paper (examined on page 19) will also provide much food for thought.
For the employment practitioner, keeping up with the changes is difficult and the unwary may be caught out. When the impact of the Human Rights Act is fully absorbed into employment law, the situation can only become more complex.