Employee Relations and Employee Law - Coursework Example

Running Header: EMPLOYEE RELATIONS AND EMPLOYMENT LAW number: Lecturer: Introduction Employee Relations entail the premise of upholding amicable employer-employee interactions that adequately adds value to a firm’s efficiency, impetus and self-esteem. This cordial state of affairs must be translated into averting and resolving issues that arise by way of or have an effect on work situations. The re-introduction of the new Advisory, Conciliation and Arbitration Service (ACAS) 2009 Code of Practice on Disciplinary and Grievance Procedures has heralded the discarding of the much maligned Statutory Dispute Resolution Procedures (SDRP) forum. The latter was largely unpopular with employers and some employees but provided a lot of billing time to the legal fraternity due to its intricate and indefinite procedures that were wrought with problematic clauses. An Associate at Mogers Associates, Tim Gofton observed that, ‘The complexity of the SDRP and the wide interpretations given by Tribunals to important areas of the SDRP (such as supposedly straightforward issues such as what constitutes a ‘grievance’) pushed employees towards seeking legal advice. This in itself pushed parties further away from resolution’ (Gofton, 2009 p.2). For the second time in five years, dispute resolution between employers and employees will be radically overhauled through an introduction of a process that has less stringent measures to the defaulting persons or entities when compared to the earlier process. While a majority of the players have welcomed the new forum for resolution of grievances, others have questioned the ambiguities encompassed in the new code which might lead to further escalation of grievance claims like in the earlier process (an increase by 40 - 65 percent within the last two years). Tynan (2009), however asserts that ‘the code is certainly less prescriptive than the old statutory dispute resolution procedures (SDRPs) that promoted fixation on procedural compliance rather than working actively to resolve the dispute.’(Tynan, 2009, p. 1). The formation of the Advisory, Conciliation and Arbitration Service (ACAS) in 1975 was preceded by a period of great turmoil in the relationships between employers and their staff. Large-scale industrial unrest in the late 1970s and 1980s was widespread due to lack of an agreeable dispute or grievance resolutions mechanism between the employers and employees. The government as a result formed ACAS through the Employment Protection Act to act as the arbitrator in the many highly volatile national strikes that were paralysing the nation hence sabotaging economic development. ACAS was instrumental in resolving many of the industrial unrest disputes cases including those between the National Coal Board and the National Union of Miners in 1984. The highlight was in determination of the explosive issue brought about by the draconian measures undertaken by the media tycoon Rupert Murdoch, owner of several newspapers who had incensed the unionised newsprint workers by drastically altering their employment terms. Through some incisive and prudent problem solving tactics, ACAS had by 2005 reduced the number of claims by 75 percent translating to an economic value of over £800 million saved. The number of strikes went down a high of over 5.5 million in 1975 to around 214,000 in 2005. This was despite a rise in the labour force by 13 percent due to more women been employed. However the number of unfair dismissal cases ascended to 81,833 out of which only 24,367 were forwarded as the rest (75 percent) were either withdrawn or settled before alignment to the employment tribunals. The higher numbers of grievance cases have been attributed to the growth of sexual harassment, racial bias, and disability claims as a result of human rights awareness. This period also experienced a reduction in the number of trade unions from a high of 488 to just 67 while their membership has almost halved from the 1975 figure of 12 million to around 7.4 million members in 2005. During this transitional period, employee/employer dispute resolution has also evolved from the previous acrimonious tribunal and court disputes of the Murdoch era to the pre-emptive conflict resolution mechanism of ‘prevention rather than cure’. Most of the contemporary contentious issues are resolved through dialogue between the warring parties while widespread training and statutory measures ensure issues do not degenerate into industrial conflicts. The SDRP Code of Conduct on Grievances and Reconciliation Procedures was initiated in 2004 to tackle the rising number of disciplinary and grievance cases. The escalating number of cases presented to the Employment Tribunal Service was a major concern to the government as the Department of Trade and Industry (DTI) realised that many cases were taking an inordinately long time and at a great cost to the litigants. This new Code of Conduct was enacted from the 2002 Employment Act which had introduced some new minimum statutory grievance and disciplinary procedures that were launched at the beginning of October 2004. These rules had a fundamental significance on both employers and employees requiring them to follow certain procedures prior to taking any disciplinary action, complaint, or arbitration forwarded to the employment tribunal. This included any issue regarding unfair sacking, prejudice or any other legislative matter concerning employment rights. ACAS however emphasized that although its revised Code of Practice was aimed at setting the minimum standards for dealing with disciplinary and grievances cases, they were not to be taken as the ultimate final guideline and that employers should always ensure fair treatment in employee conflict resolutions. The Employment Tribunals were therefore the final arbitrators while the ACAS code served as a guideline only. According to the ACAS Chairperson Rita Donaghy, the ACAS code consisted of, ‘a list of core principles of reasonable behaviour in dealing with disciplinary cases to help people understand the test of reasonableness used by tribunals in unfair dismissal cases.’(Pinset-Masons, 2004). The Discrimination Law Association (DLA) criticised the Code in 2007 citing the dismissal procedures as confusing to all the parties hence rending it unfair to the aggrieved. It recommended new optional measures from the government which are not penalised while been clear on their approach. The tribunals should also be empowered to give suggestions rather than mere blanket dismissal of all matters unrelated to employee welfare (DLA, 2007). The SDRP nevertheless introduced measures aimed at enhancing the protection of both the employee and employer alike from frivolous claims or other malicious arguments by either party. This statutory dismissal, disciplinary and grievance procedures provided for a three-tier conflict resolution mechanism. This encompassed the employer issuing the employee a written statement outlining the reasons for a dismissal or any other valid disciplinary action taken against the employee. Similarly, the employee was also obliged to indicate in writing own grievances against the employer. In the second tier, a meeting is constituted by the employer whereby both sides present their grievances. The employee is also given the right of appeal unless both parties come to an amicable agreement. The appeal is therefore held before any further action is taken against the employee. These steps were later modified to a simpler two tier process. If the claim proceeds to the Employment Tribunal, penalties are excised on either party if they have flouted the procedures preceding a tribunal seating. This includes a 10 to 50 percent increment or reduction in an award dependent on whoever flouted the rules. However in cases of an employee, a statutory cap of £58,400 is set in case of wrong dismissal but no limit to compensation regarding a discriminatory issue. According to Jones (2006), the pre-acceptance procedures of the SDRP had resulted in a reduction of claims between 2005and 2006 whereby over 8,000 claims were rejected. These claims were nevertheless probably from personal representation of claimants who failed or were unable to properly follow the pre-acceptance procedures as outlined in the ACAS 2004 Code of Conduct and would most likely have to consult or seek external legal advice from solicitors (Jones, 2006). However Tynan (2009) disputes the claim asserting that ACAS Code of Conduct introduced in 2004 only led to enhanced costs to employers estimated at over £180 million due to unprecedented rise by 28 percent in the number of claims lodged by employees that culminated in an 18 percent rise in the official disciplinary cases (Tynan, 2009). Gordon Scott, chief executive at EEF (a technological based manufacturing employer organization), suggested that the new laws advocated by the Employment Act 2002 were bound to wrestle conflict resolution at work place including dismissals related to misconduct, capability, redundancy among others from the hands of the employer and unions, to lawyers and courts. He asserted that. ‘This is putting what should be common sense rules and activity within the company into the hands of the lawyers, irrespective of whether that firm has successful and proven methods of handling disputes and grievances’ (EEF, 2004, p. 1). These grievances procedures were problematic in that there was no specific guidance on what constituted a proper written grievance. Numerous procedural hearings were held to ascertain whether the correct procedures had been followed. The disciplinary procedures also proved to be a stumbling block to even diligent employers who were subjected by legal counsel to minute interactions to prove they had used the correct procedures. According to McLaughlin (2007), the various procedural bottlenecks had empirically led to a veritable loss of over £114 million from 2004 to 2006, while the average cost to the employer incurred at the Employment Tribunal hearings amounted to over £9,000 per claim. McLaughlin also asserts that the numerous frivolous claims and counter claims ensure the tribunal hearings are a drain to the litigants and hence provide little justice (McLaughlin, 2007). Numerous employers have nonetheless successfully inducted the now redundant statutory ACAS 2004 Code of Conduct in their company’s employee relations processes. The Code of Conduct provided practical guidance on the statutory requirements concerning disciplinary and grievance issues. The London Network of Networks (LVSC) code of conduct is an example of process which was modelled along the lines of ACAS’s Code of Practice on Disciplinary and Grievance Procedures 2004. Its preamble states that. ‘It is in everyone’s best interest to ensure that workers’ grievances are dealt with quickly and fairly and at the lowest level possible within the organisation at which the matter can be resolved.’ It further outlines in its code of practice the major areas of conflict between the employer and employee which need to be resolved for a good working relationship. This include: the terms and conditions of service; medical and security measures at the workplace; the interaction with other staff and management; provision of modern employment procedures; career path and progression; equitable or fair practices. (PEACe, 2004) The new ACAS Code of Conduct effective April 6, 2009 has modified some of the inflexible processes that were considered an impediment to the application of justice in the previous code. This new code was enacted after the Royal Assent to the Employment Act 2008 which had received various representations concerning the unpopular SDRP Code of Conduct. This new code includes a reduction of the punitive penalty for flouting the procedural practices from a high of 50 percent to a maximum of 25 percent penalty on either party. The new code has also incorporated the Transfer of Undertakings (Protection of Employment) Regulations 2006 that requires the employer to provide information to the employee of all grievance procedures that were carried out against the person within the previous two years. A repeal of the SDRP Employment Tribunal procedures was enacted whereby the statutory measures were relaxed to incorporate extension of time period, elimination of the statutory default rulings due to the flouting of the rules, withdrawal and dismissals of proceedings made flexible. Other changes involved the consent for Trade Unions and Labour Relations (Consolidation) Act 1992 to be amended thereby giving the unions the mandate to expel errant members due to political affiliations, and lastly the enhancement or the provision of National Minimum Wage implementation. Additionally the new ACAS Code of Practice has included Statutory Sick Pay Maternity, Paternity and Adoption clauses which were enhanced. This incorporated a provision of a minimum pay rise from £75.40 to £79.15 while the statutory maternity, paternity, and adoption allowances were raised from £117.18 to £123.06. Other increments were made on the statutory minimum paid holiday which was extended to a minimum of 5.6 weeks from the previous low of 4.8 weeks as spelt out in the Working Time (Amendment) Regulations 2007. The new code does not however cover those employers on temporary employment including agency staff, part-time contracted workers, or self-employed persons. The new ACAS Code disciplinary procedures cover personal misconduct and poor performance while excluding dismissals due to redundancy or on grounds of non-renewal of fixed-term contracts. While lauding the new code Pat McFadden, the Minister for Employment Relations, said: ‘Tribunals can be costly, time-consuming and draining for people and businesses alike.’ While ACAS CEO John Taylor stressed that changes would empower firms to be more flexible when dealing with staff problems and reduce tension and costs incurred in litigation. Some aspects of the new code have been criticized like the flexible working hours to cater for a 17year old teenager. Fincham (2008) also censured the new code for lacking ‘transparency’ in enabling legislation and the ambiguity of the dismissing authority which might lead to ‘unfair’ dismissals (Fincham, 2008). Tynan also faults the code for been silent on issues concerning dismissals due to redundancy or on renewable contracts on expiry (Tynan, 2009). Employee relations have always been a contentious issue especially when it comes to matters of grievances and disciplinary issues. This is essentially complicated when employee consider they have been discriminated against due to various factors including gender, race, age, among others. This is contrasted by the employers who may view a particular employee is underperforming, undisciplined, is outright incompetent, or may need to trim down the workforce. Although various mechanisms have been enacted to deal with employee conflict resolutions among the employer and employee, neither party has wholly embraced the progressive steps advocated. The country has however rapidly developed from the draconian employment terms of the previous centuries to the current favourable cordial dialogue driven methods from the earlier confrontational methods that resulted in huge losses to all. The earlier code practised under SDRP although highly criticised managed to reduce major discriminatory practices employed earlier and has thus evolved to the new code. The new ACAS Code of Conduct is an improvement on the earlier code that emphasised on strict compliance and procedural technicality rather than on equitable fairness to the aggrieved parties. The new code nevertheless needs to be streamlined to include issues relating to redundancy, renewable term contracts, and specifying the dismissing authorities to guard against eroding gains made on job security. Bibliography ACAS. (2004) Disciplinary and Grievance Procedures: Draft Acas Code of Practice. London: ACAS CBI. (2000) Confederation of British Industry. CBI RESPONSE TO ACAS DRAFT CODE OF PRACTICE ON DISCIPLINARY AND GRIEVANCE PROCEDURES. London: Confederation of British Industry (CBI) DLA. (2007) The Discrimination Law Association -. DTI Consultation: Resolving Disputes in the Workplace. London: Discrimination Law Association E. Ruser. (2004) Guidance on the Employment Act 2002 (Dispute Resolution) Regulations 2004 and associated provisions in the Employment Act 2002. London: Department of Trade and Industry (DTI) EEF. "Statutory Dispute Resolution Procedure." 13 August 2004. EEF. .[Accessed on 2 May 2009] Fincham, Anthony. (2008) Repeal of statutory dispute resolution procedures effective 6 April 2009? London: Gale, Cengage Learning Gofton, Tim. (2009) Employment Briefing Note from Mogers. Bath: Mogers Solicitors Jones, Merc. (2006) "In Brief." ELA Briefing Vol.13 No.8 September/October 2006: 1-2. McLaughlin, Michael. (2007) "The End for Statutory Dispute Resolution Procedures." 21 June 2007. Biggart Baillie LLP. .[Accessed on 3 May 2009] Norris and Robertson v Lambert and Lambert t/a Black Bull Inn (IDS Brief 801) Palmer, Tom. (2004) Statutory Dispute Resolution Procedures. London: DTI: Employment Relations Directorate PEACe. (2004) "GRIEVANCE PROCEDURES." November 2004. LVSC’s Personnel, Employment Advice and Conciliation Service . [Accessed on 4 May 2009] Pinset-Masons. (2004) "Disciplinary and Grievance Code of Practice: Acas Consults." OUT-LAW News : 1-2. Radin Ltd v GMB and others [2004] EWCA Civ 180 Sweetin v Coral Racing [2006] IRLR 252 Tynan, Roger. "ACAS Code Has a Second Crack at Dealing with Employment Disputes." 26 March 2009. Available from Times Online. . [Accessed on 3 May 2009] Read More