The Employment Bill 2001

The Employment Bill 2001 makes a number of changes to the legislative framework of individual employment law. The most startling relate to unfair dismissal cases.

Part 1 makes significant changes to parental leave and pay, to take effect from 2003. Ordinary maternity leave is extended from 18 weeks to 26 weeks. Statutory maternity pay (SMP) and maternity allowance are also extended to 26 weeks. SMP will remain at 90 per cent of pay for the first six weeks, but the flat rate for the remaining period goes up to £100 per week (or 90 per cent of earnings if less). Additional maternity leave (available to those with at least one year’s continuous service) will be set at up to 26 weeks, so the maximum possible maternity leave will be a year.The bill also introduces a new right to two weeks paternity leave and two weeks statutory paternity pay at the same rate as SMP and a right to 26 weeks adoption leave and statutory adoption pay at the same rate as SMP, all subject to 26 weeks continuous service. Additional adoption leave of a further 26 weeks will be subject to longer service, probably a year. Where a couple adopts, one spouse may take adoption leave and the other may take two weeks paternity leave.Part 2 changes employment tribunal procedure, including giving tribunals powers to order costs directly against a party’s representative on the grounds of the way in which they have conducted the case, and the power to order that one party makes a payment to the other in respect of management time spent in preparing their case. The bill also provides for determination without a hearing where both parties consent in writing, and for tribunals to have the power to strike out very weak cases at a pre-hearing review rather than order a deposit.Part 4 of the bill introduces various changes. Provision is made for the use of questionnaires in equal pay cases, and for paid time off work for union learning representatives. Further, the Secretary of State is given the power to introduce regulations to implement the Fixed Term Workers Directive and prevent pay and pensions discrimination against those in fixed-term employment.But Part 3, which introduces new minimum employment statutory dismissal and disciplinary procedures (DDPs) and statutory grievance procedures (GPs), is more of a concern. These procedures will become an implied term in all contracts of employment, and it will be automatically unfair for employers to dismiss an employee without following them. Where a dismissal is unfair because the DDP was not followed, the employee will receive a minimum award of four weeks pay, and the tribunal will also be required to increase the compensatory award by between 10 and 50 per cent.However, the minimum requirements of a DDP are indeed minimal:• the employer must tell the employee in writing why dismissal or discipline is being contemplated;• the employer must invite the employee to a meeting to discuss it;• the employee must take all reasonable steps to attend the meeting;• the employer must tell the employee of its decision and of a right to appeal;• if the employee wishes to appeal, they must tell the employer;• if so, the employer must invite the employee to a meeting (which may take place after the discipline or dismissal takes effect);• the employee must take all reasonable steps to attend the meeting, and the employer must tell the employee of its final decision.Furthermore, there must be no unreasonable delays, the timing and location of meetings must be reasonable and the appeal meeting should involve a more senior manager than the first hearing.For a government committed to partnership at work, it seems odd that the minimum procedure required for one partner to be rid of the other is so slight.This reform is a missed opportunity to require that the basic elements of fairness in the Acas Code of Practice on Disciplinary and Grievance Procedures should form part of every case. Alternatively, the legislation could have reversed the common law rule that the rules of natural justice are not to be implied into a contract of employment.The Government has not merely failed to impose these fairer standards, it has undermined them too. Tribunals will be required to disregard any procedural failures by an employer other than those contained in the minimal DPP, if the employer can show that adhering to a fair and proper procedure would have had no effect on the decision to dismiss.This removes an important protection established by the House of Lords in Polkey Dayton (1988), that a breach of fair procedure, if sufficiently serious, can in itself render a dismissal unfair. At present, this means the applicant gets a finding of unfair dismissal and a basic award because of the procedural unfairness, even if there is no compensatory award because the tribunal finds that a fair procedure would have made no difference to the final outcome. This will give a green light to employers who disregard fair procedures. John Hendy QC is head of Old Square Chambers and vice-chair of the Employment Law Bar Association; Anya Palmer is a tenant at the setI/i>