From changes to the flexible working laws and statutory holiday allowance increases to amendments to the disciplinary and grievance procedure, April is set to be a busy time. Verity Gough speaks to the experts to find out which key laws HR needs to get its head round.
This spring a series of sweeping changes to existing employment legislation are to come into effect as well as a number of new laws making their debut. But while the last five years have seen a raft of statutory changes for HR to digest, how much extra work are the new additions likely to add to HR's increasingly heavy workload?
Flexible working – 6 April 2009
One of the biggest changes will be the amendments to the regulations governing flexible working requests. Currently, parents or carers of children up to the age of six, or parents and carers of disabled children up to the age of 18 are able to request permanent changes to location, hours or days of work. This will now be extended to all parents or carers with children up to the age of 16. And while the changes come into force for all countries in Britain, except Northern Ireland, potentially it could mean an extra 4.5 million parents asking for flexible working hours.
"In your day-to-day work, trying to deal with an internal investigation is not always top of the pile and unless HR has had training or lots of experience to deal with it, things can come unstuck."
Rachael Heenan, Beachcroft
At first glimpse, apart from communicating the changes to employees, there doesn't seem to be too much additional work for HR, but Gillian Dowling, employment technical consultant at Croner Consulting, warns that they should be prepared for a potential increase in requests. "Parents that have young children starting school or those who want to make sure that their older children are home rather than out with friends may well want to request flexible hours," she says. "HR needs to make the rules clear to staff as any changes - unless agreed on a temporary basis with the employer - will be fixed for the period of one year."
This factor becomes even more important under the current economic climate: "When the right to request first came in, employers were keen not to have people working part-time," says Anne-Marie Balfour, solicitor for Speechly Bircham's employment team. "But now employers are looking at ways to cut the wage bill without resorting to redundancies which can have a negative impact."
Instead, Balfour has noted an increase in employees taking part-time work and sabbaticals. "In which case," she says, "this new statutory right is one that might be worth publicising to your workforce more so now then it would have been a few years ago."
Yet as Dowling points out, currently time is a luxury few can afford, so reducing working hours and pay is not going to be a priority for many: "Employers may be very prepared to have hours reduced, but parents might not be able to afford that at the moment," she adds.
Disciplinary & grievance procedures – 6 April 2009
Another big change that will most certainly affect HR’s workload is the abolition of the statutory discipline and grievance procedures for handling workplace disputes. In its place will be the Acas Code of Practice, which offers a broader set of guidelines based around five main principles: Employers should act consistently, carry out any necessary investigations, tell the employee the base of the problem, give them an opportunity to put forward their case, and allow them to be accompanied by a colleague or union member.
However while the principles sound fair, the 'grey area' surrounding the correct procedures has certainly expanded: "It was quite prescriptive before and while it is good news for employers that they are doing away with it, the broader principles give more scope for error if you are not clear," says Rachael Heenan, employment partner at Beachcroft law firm. She believes that training for managers is key to ensuring a smooth transition between the old and new laws.
"The five main principles are things that should be dealt with promptly, and that is always an issue: in your day-to-day work, trying to deal with an internal investigation is not always top of the pile and unless HR has had training or lots of experience to deal with it, things can come unstuck," she reflects. "Although it is meant to be more flexible, the ideas in the Acas code can mean that an employer trying very hard to apply the letter of the law and comply with their obligations can find it harder because there is more flexibility; it gives more scope for arguments," says Balfour.
In addition, she believes the new code of practice, which allows employees a reasonable opportunity to present evidence, which includes bringing in witnesses at disciplinary hearings, will inevitably delay procedures: "It could turn proceedings into even more of a mini court-case," she says.
"Although it is meant to be more flexible, the ideas in the Acas code can mean that an employer trying very hard to apply the letter of the law and comply with their obligations can find it harder."
Anne-Marie Balfour, Speechly Bircham
John Ruddell, an employment law solicitor from Barlow Robbins, agrees: "The desired effect of the old statutory procedure was to get fewer claims but it has not worked – it has resulted in the exact opposite," he explains. "One of the main reasons is that it was quite prescriptive and there was a lot of argument over whether it actually applied in the first instance, which actually resulted in more Tribunal claims. But the purpose of this now is to make it more flexible and to lay down some guidelines, especially how to follow the process," he says.
However, Balfour sounds a note of caution: "Training is really important in the early stages to make sure everyone knows what the differences are this time around and also on the transitional provisions; there will be some grievances and dismissal situations that will span the two regimes, so make sure you know which one to work with," she says.
Other concerns over the new code include the changes to the pay award penalties. "We have a new section – 207a, which is going to be inserted into the Trade Union and Labour Relations Consolidation Act 1992 and that says that if an employer fails to follow the code of practice for disciplinary and grievance procedures, and the employee brings a claim and it's successful, there could be a 25% increase on the award and similarly the employee could be penalised by a reduction of 25% if they haven’t followed procedures."
These penalties, she says, are there to make things run more smoothly. "It might encourage things to get resolved before it gets to a Tribunal stage as employers are scared of putting their foot in it by writing the wrong letter or planning a meeting where they have good intentions but come unstuck with statutory procedures," says Ruddell. "They may find that the guidelines under the ACAS code give them a procedure to take without tying their hands behind their back."
Minimum statutory holiday entitlement increases from 24 days to 28 days - 1 April 2009
While this doesn't immediately mean a great deal of change for many, the increase of holiday entitlement can be a sore point for senior employees who used to see extra time off as a perk. Employees who have been used to having a right that is enhanced or better than the statutory position, could feel put out if everyone is brought up to that level. "HR might be thinking about what they could be doing to boost their incentive packages," says Balfour.
In addition, a generous holiday entitlement has long been a weapon in the recruiters' arsenal but the increases will mean companies have to think a bit harder about how to attract the talent.
Increased penalties for failure to pay national minimum wage introduced - 6 April 2009
The new legislation states that if you have underpaid someone, then the arrears will have to be paid at the current rate but even if you have underpaid by a fairly small amount, there is now a penalty based on 50% of the arrears outstanding. This is also subject to a minimum fine of £100 and a maximum of £5,000. However, much like a parking ticket, if the employee is reimbursed at the current national minimum rate of pay within 14 days, the fine can be reduced by 50%.
While there are numerous other changes to the current law, such as maternity, paternity and adoption pay increases, and statutory sick pay increases, most HR departments will be well versed in adopting legislative changes. "The HR community are quite switched on so most employers will know how to go about implementing these things," concludes Heenan. "The key now is about communication with employees."
Time line of employment law changes
- 1 April 2009: Minimum statutory holiday entitlement increases to 28 days
- 5 April 2009: Statutory maternity, paternity and adoption pay increases
- 6 April 2009: Trade union membership rules are amended
- 6 April 2009: Repeal of the dispute resolution procedures
- 6 April 2009:Employment Tribunals Act 1996 (Tribunal Composition) Order 2009 comes into force
- 6 April 2009: Employment Tribunals (Constitution and Rules of Procedure) (Amendment) Regulations 2008 comes into force
- 6 April 2009: Revised Acas Discipline and Grievance Code of Practice comes into force
- 6 April 2009: Increased penalties for failure to pay national minimum wage introduced
- 6 April 2009: Statutory sick pay increases
- 6 April 2009: Right to request flexible working is extended