The 5 most important employment law developments in 2009

1. To the relief of employers, the statutory dismissal and grievance procedures, introduced in 2004, were abolished in April 2009.  They have been replaced by a new ACAS code on how to handle disciplinary issues and staff grievances.  The code is not legally binding, but tribunals will use it as the benchmark for good practice and judge cases accordingly.  A tribunal has the power to adjust an award of compensation upwards or downwards by up to 25% if it thinks that a party has unreasonably failed to follow the 2009 Code.  Employers should note that the code introduces a duty to tell employees about their right to be accompanied to a hearing.  Simply failing to tell an employee about this could result in an increase in an award to an employee.
2. Increase in paid holiday entitlement to 5.6 weeks for full time employees (i.e. 8 bank holidays + 20 days).
3. Flexible working requests can now be made by parents with children under 17, provided they have been employed for at least 6 months.
4. In May, an important constructive dismissal case (Bournemouth University v Buckland) held that an employer can remedy a breach of trust and confidence in the course of the grievance process where the employee raises a grievance in relation to the breach.  It does not matter whether the employee’s view is that the breach has not been remedied.  Whether or not the employer’s actions are sufficient to “cure” the breach will be judged objectively, but if the breach is “cured” the employee’s right to resign and claim constructive dismissal will vanish.
5. Nothing to do with yet another appalling British summer, but decisions by the House of Lords and the European Court of Justice have ruled that (a) staff continue to accrue holiday during periods of long term sick leave, and (b) staff who are ill whilst taking annual leave must be given the right to take that leave again at a later date. Currently it is unclear whether these rules apply to the original 20 days annual leave entitlement conferred by the EC Working Time Directive or whether they apply to the full current entitlement of 5.6 weeks.  Another moot point is whether it is possible for employers to insist that sick employees take their annual leave entitlement whilst they are off sick, rather than continue to accrue the leave until their employment is terminated or until they return to work.

And next year …… The Equality Bill is expected to become law in autumn 2010.  The draft legislation will combine all existing discrimination legislation and introduce the following:

• prevention of clauses in employment contracts which try to prohibit employees from discussing their pay packages
• an obligation on larger employers to publish gender/pay reports (the government have said that this will only be introduced if insufficient progress is made over the next four years to close the gender/pay gap)
• positive discrimination during recruitment in favour of disadvantaged groups where candidates are otherwise equally qualified
• a strengthening of laws against disability discrimination by overturning an important recent case which severely limited the scope of the disability discrimination legislation
• an increased power for tribunals to make anti-discrimination recommendations affecting all employees (not just the individual who brings the claim).

We wish you a merry Christmas - and a claim-free New Year!

For more information on the above or to discuss any employment related query, please contact Caroline Banwell on 01223 417287.

The information given in this article is of a general nature only and should not be considered as advice applicable to any particular situation for which specific request should be made to us.

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