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April - May 2004


Business Forum

India Link Business Luncheon At Veeraswamy

by Krishan Ralleigh


India Link International's Business Forum held it's third business luncheon at the Veeraswamy Restaurant in the wets end on Thursday 19 February. The talk given by Miss Lisa Judd of Bowling & Co Solicitors was entitled 'Recent Employment Issue'. Naturally it was of interest to members who have any number of employees in their company.

The President of the Business Forum, DR SP Sharma welcoming the audience said ' I am sure that those of you who attended the last two luncheons have seen the benefit of such meetings. Although I myself could not attend the previous two meetings because of personal reasons I was fully briefed of these meetings by our general secretary, Krishan Ralleigh.

The ILI Business Forum ha become an important talking point amongst Asian businessman in Britain. These luncheon meetings do provide effective networking and up to date information from the business world. Indirectly, these meetings also help in understanding the progress of the Indian economy. I very much hope that the Forum will continue to support the initiative taken by the government of India. Besides, it is crucial to understand the business environment in Britain and the western world. A businessman has to be constantly in touch with the latest, rules, laws and regulations to be successful.

 

RECENT DEVELOPMENTS IN EMPLOYMENT LAW BY LISA JUDD

By far the most ground breaking developments in employment law in recent years is the introduction from October 2004 of new statutory disciplinary and grievance procedures. One underlying purpose of the proposals no doubt is to provide increased protection to employees but saving tax payers money is also a powerful influence. The government is concerned at the rising cost of running the Employment Tribunals service and a sensible way of trying to reduce the number of applications to tribunals and thus save costs is to encourage various alternative forms of dispute resolution.
Whilst the government has stopped short of implying these terms into all contracts of employment, which could have given rise to breaches of contract claims, if the new procedures are not followed by an employer, any resultant dismissal will be automatically unfair. It is important for employers to bear in mind that before they dismiss and employee or impose a sanction such as a demotion, loss of seniority or loss of pay, they are legally required to have:
Whilst it is advisable for employers to follow the above procedures in all cases, there is no requirement to do so when only a verbal or written warning is to be issued. A shorter modified two stage procedure also exists for situations where an employee has already been summarily dismissed for gross misconduct.
As stated above, if an employer dismisses an employee without completing the statutory minimum dismissal and disciplinary procedures, then that dismissal will be automatically unfair (subject to normal eligibility conditions e.g. the normal one year qualifying period). There will then be a mandatory award of of four week's pay minimum by between 10% and 50%. Percentage adjustment s of between 10% and 50% are also to be made before any reduction for contributory conduct by the employee. Additionally the court of appeal has recently held that compensation for unfair dismissal can include compensation for injury to feelings which can be a significant additional head of claim.
 
The converse is not true. Compliance with the minimum procedures will not mean that a dismissal is automatically fair. In this context it is worth noting that the proposed minimum standard statutory procedures are less stringent that those recommended by the current ACAS code of practice on disciplinary and grievance procedures which must be taken into account in appropriate cases by employment tribunals considering whether dismissals are fair or unfair.
 
A revised code of practice offering practical guidance on application for the new regulations is available on the ACAS website. Where an employee has reasonable grounds for believing that a disciplinary procedure is still ongoing at the end of the usual three month limitation period in which tribunal claims must be commenced., The regulations allow for an extension to this time limit.
 
Similarly, a three stage statutory procedure will exist for grievances for which a worker cannot settle informally, which must be used if the worker may subsequently wish to use the grievance as the basis of an application to an employment tribunal.
Under the statutory procedure, employees must: follow a two stage modified procedure for situations where an employee has already left the employment concerned. In he case of a grievance procedure (standard or modified) there must normally be a 28 ay "cooling off" period so that attempts at compromise can be made. If there is a breach of the procedures, an employment tribunal shall be prevented from considering a complaint if either (a) the breach is apparent to the tribunal from the information supplied or (b) the tribunal is satisfied of the breaches a result of his employer raising the issue of compliance with those provisions in accordance with the regulations.
 
There is no exemption from the new dispute resolution rules for small employers. The exemption of small employers (in ERA 1996 s3) requiring employees to be given details of disciplinary and grievance procedures is to be removed and the requirement itself is to be modified.
Other new legislation of which employers should be aware includes legislation prohibiting discrimination on the basis of a worker's religion or sexual orientation. The legislation came into force in December of last year so employers should already have amended their equal opportunities policies to embrace the new rights that the legislation confers. For an employer, having to admit on a discrimination questionnaire that the appropriate policies are not in place can be extremely damaging to the prospects of successfully defending a tribunal claim.
 
In light of the revolutionary changes imposed by the above mentioned regulations now is the ideal time for employers who have not already done so to review their procedures and supporting policies to ensure compliance. Too frequently employers only think about addressing these issues once they are already embroiled in the costly process of defending their actions to a tribunal. From a risk management point of view, it is far better for employers to give some thought to their risk management documentation before problems arise, as a preventative measure when the greatest cost/benefit ratio can be achieved.

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