Statutory Dismissal and Grievance Procedures to be repealed.   The Queen's speech contained a new Employment Bill which will see an end to the Statutory 3-step procedures for dismissals and grievances.

To err is human, but be careful how you correct errors on employment contracts   One company thought it had corrected a "typo" but ended up in a tribunal.

How to manage sickness absence   Managing long term employee sickness using appropriate medical advice

Statutory pay increases.   From April 08

Statutory Dismissal and Grievance Procedures to be repealed.

Remember the Grand old Duke of York and his 10,000 men. 

“He marched them up to the top of the hill, and marched them down again”. 

In October 2004 we all marched to the top of the hill clasping our new Statutory Dismissal and Grievance Procedures, following the government minister who promised savings of over £30m due to 30,000 fewer tribunal cases every year. 

And what a fine mess he got us into. Tribunal claims are now over 20% higher than they were before the new rules came in. 

The Queen’s speech in November contained a new Employment Bill which will repeal all the statutory procedures introduced in 2004. We are going to have to march all the way down to the bottom of the hill again. This time the government say we could be saving £130m per year. (How much salt would you like with that figure, sir?)

So what will change, and when? 

The new law will take us back to the position we were in before October 2004. Instead of having to follow a rigid 3-step procedure for dismissals and grievances, we will be expected to comply with whatever codes of practice are in force. We have been told that ACAS will be issuing a revised code of practice on dismissal and grievance, before the new rules take effect. 

There will be financial penalties to encourage us to pay attention to the codes of practice. Tribunal awards can be increased by up to 25% if an employer doesn’t comply with the code. And naughty employees who don’t comply with the code can have their compensation cut by 25%. 

And when is all this going to happen? 

Well don’t put on your marching boots just yet. No date has been set. If the law is passed by the middle of the year, it could happen on 1st October 2008 at the earliest, or possibly 1st April next year. Or maybe later still.

So in the meantime, we mustn’t forget we’re still on the top of the hill. Dismissals and grievances must follow the 3-stage procedure because tribunals will cane us if we forget. 

We will of course keep you posted on developments and give you lots of notice when you need to put on your marching boots ready for a rapid descent to 2004.

To err is human, but be careful how you correct errors on employment contracts

Peter Robinson was a happy chap. He had a new job, a business card with the impressive title of Franchise Operations Manager and a shiny new executive company car. His new company had a generous expenses policy too. According to the contract he signed, he could claim 25p per mile for using his company car.

So Peter was a little surprised when he received the payment for his first expense claim and it was less than he expected. He queried it with the HR Manager who informed him there had been a mistake with his contract. The mileage rate for company cars was 15p per mile not 25p.

So after that Peter submitted his claims at the correct rate of 15p per mile. But six months after joining the company he handed in his resignation. The company didn’t want him to work his notice and he left immediately.

A few weeks later, the company received a grievance letter from Peter claiming they owed him over £2,000 in unpaid expenses. He said they should have paid him 25p per mile as his contract stated.

When a company receives a grievance after an employee has left, it’s a fair assumption that a tribunal claim will follow.

So five months later they all trooped off to the Employment Tribunal in Shrewsbury. After hearing all the evidence, the Tribunal Chairman decided the case in favour of Peter Robinson. He said it was clear that Mr Robinson had a contractual right to 25p per mile. The Company wanted to change the contract but they didn’t have the right to do so without agreement.

Now most of us would probably have accepted the ruling and paid up. After all, two thousand quid isn’t a huge amount for a company, and it’s such a hassle to appeal.

But not this company. Not only did they appeal to the EAT but they presented the case themselves to save legal fees. The good news for them is they won part of the legal argument. The bad news is they will have to go back for another tribunal hearing.

The EAT Chairman said it was indisputable that Peter’s first months expenses should have been paid at 25p per mile and the company must pay him the full amount.

However, once Peter was told that his contractual terms had been changed there is a different situation.

The crucial point is whether or not Peter accepted the change to his contract. If he accepted it, then the company owes him nothing more. Only if he didn’t accept the change would he be entitled to the original terms.

The case was remitted to a new tribunal to decide, but Peter's chances appear slim. To prove his case he will need evidence of his not accepting the change, such as writing a letter of grievance (at the time), or continuing to submit expenses claims at 25p per mile.

Perhaps the parties will make an out-of-court agreement and save themselves another day in court.

So what have we learned from this case? To be absolutely correct, once the company realised its mistake it should have written to Peter and terminated the existing contract with due notice, offering a new contract on the revised terms.

Alternatively, it could have written to confirm the change in his contract with a line stating that “unless we hear to the contrary, we will take it that that this change is acceptable to you”. Not legally watertight but probably enough in the circumstances.

As this case shows, just dealing with a “typo” mistake on a contract can have far reaching consequences. At Picasso HR we help our clients to get these things right first time.

How to manage sickness absence

The government's proposals for 'well notes' are making headlines at present, with Health Secretary Alan Johnson looking to reduce the numbers of people claiming Incapacity Benefit and GPs complaining that they are being asked to 'police' the system and become experts in Occupational Health.

To be fair, the system does need an overhaul - we all know the perceived problems with sick notes: reasons for absence which are too vague to be of any help to employers and a suspicion that a canny employee can con their GP into signing them off for any excuse. With a period of long-term absence there is often a sense for employers of 'signed off for yet another month with no end in sight.' We will have to see how the Government's current proposals develop, but in the meantime, how do you cope with any current long-term sick employees?

In the first place, don't ignore the obvious: talk to your employee regularly about the situation and discuss how you can help support them both during the absence and when they are ready to return. Being away from work because of long-term sickness can be lonely and demotivating. Most employees will be keen to return but may be concerned over how they are viewed by the employer. Keeping a constructive dialogue going can ease the fears and smooth the way to a successful return.

We are often asked by clients about whether or not to contact an employee who is on long-term sick leave due to stress or depression. The best approach will vary according to the individual so our advice is to ask them how they would prefer contact to be maintained. Remember that as the employer you are entitled to require some sort of regular contact with an absent employee, but in some cases the person may prefer for contact to be made with a family member, at least in the beginning, so be sensitive to this.

When making decisions about a person's employment when they are off sick, it is important to try and obtain medical advice on the person's condition and implications for their work. This is one of the principles behind the 'well note' proposal, but already exists as a resource for managers to use. Occupational Health services have specialists trained in understanding the relationship between health and work, and both they and the person's GP can provide reports for employers to guide decision-making. You should be aware that you will need to obtain the employee's consent before requesting a medical report about them, and the employee has the right to see the report before it is submitted to you. If this is a route you need to take, contact Picasso HR for more detailed assistance.

But what happens if you've tried all the above but there's still no prospect of a return? How long does the employer have to wait? There is a belief among some employers that you can't dismiss someone while they're covered by a sick note. This is not necessarily true, but you are expected to act 'reasonably' when dealing with the case. If it all goes wrong, a tribunal will expect to see evidence that you had discussions with the individual, you obtained medical evidence where possible, and there is a genuine reason why the business could not wait any longer for the person to return. Don't forget that where the absence relates to a disability, you will need to have considered making reasonable adjustments to their work before you reach the final decision.

For help with any of the stages outlined above, contact us.

Statutory pay increases.

These are the increases from 6th April 08 for Statutory sick (SSP), maternity(SMP), paternity(SPP) and adoption pay(SAP):

• SSP will increase from £72.55 to £75.40
• SMP, SPP and SAP will rise from £112.75 to £117.18.

The information in this newsletter is of a general nature and is not a substitute for professional advice. You are recommended to obtain specific professional advice before you take any action.

For further information, advice or assistance on any of the matters raised in this newsletter please contact Picasso HR on 01473 890037.

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