Employment Act 2002

Product Information

The Act introduces a number of changes to employment tribunal procedure. Among other things, it enables the secretary to state to make regulations authorising tribunals to: Consultation on draft regulations containing detailed provisions on the operation of the new right closed on 10 October 2002. The regulations are due to take effect from April 2003. Employment tribunal reform The Act also gives parents of children under six years of age (or disabled children up to the age of 18) the right to request flexible working patterns for childcare purposes, and places a duty on employers to give proper consideration to the request ( UK0112105N). The aim is to facilitate dialogue between working parents and their employers about working patterns that meet parents’ childcare responsibilities as well as employers’ business needs. Such a request may involve: The Act sets out a statutory dismissal and disciplinary procedure and a statutory grievance procedure, each involving three stages. The standard dismissal and disciplinary procedure involves:

A modified, two-stage dismissal and disciplinary procedure will apply in cases of gross misconduct. Similarly, a modified, two-stage written procedure will apply to grievances on the part of former employees. The Employment Act essentially represents an uneasy trade-off between the extension of employee rights and measures to limit the use of litigation to enforce them. As a result, it is hardly surprising that neither the CBI nor the TUC is satisfied with the outcome. But there has also been criticism from within the legal profession of the Act’s provisions to limit recourse to tribunal hearings. Unusually, the President of Employment Tribunals (England and Wales), Judge John Prophet, publicly voiced concern that aspects of the legislation might violate the right to a fair hearing guaranteed by the Council of Europe's European Convention for the Protection of Human Rights and Fundamental Freedoms (see 'The Employment Act 2002 and the crisis of individual employment rights', Bob Hepple and Gillian Morris, Industrial Law Journal, September 2002).

Commentary

The Confederation of British Industry (CBI) and the Trades Union Congress (TUC) have both given mixed reactions to the provisions of the Employment Act. the use of successive fixed-term contracts will be limited to four years, unless the use of further fixed-term contracts is justified on objective grounds. the introduction of a new right to two weeks’ paternity leave paid at the same standard rate as SMP. This is in addition to the existing right to 13 weeks’ parental leave;

Also, under this Act, there were many other factors such as equal pay, fixed-term work, flexible working. Employers may refuse to grant requests for flexible working for objective business reasons. These may be because the working arrangement requested would add unreasonable costs to the business or it might have a detrimental impact on quality, performance or the ability to meet customer demand. Any refusal would need to be objectively justified and properly explained to the employees. The Employment Act 2002 contained new rules on maternity, paternity and adoption leave and pay, and changes to the tribunal system in the United Kingdom.

Changes to legislation:

In addition to the legislative measures contained in the Act, the government set up an Employment Tribunal System Taskforce to look at ways of making the tribunal system more efficient and cost effective ( UK0111105N). This issued its report in July 2002. Its main recommendations include the establishment of a high-level coordinating body to ensure greater coherence within the employment tribunal system and the promotion of best practice, and a greater emphasis on the prevention of disputes. Ministers have said that they will respond to the Taskforce’s recommendations in the autumn. Workplace dispute resolution The Fixed-term Employees (Prevention of Less Favourable Treatment) Regulations 2002 came into force on 1 October 2002. They provide that: The Act also provides the basis for amending employment tribunal rules to introduce a fixed period for conciliation by the Advisory, Conciliation and Arbitration Service (ACAS), and to enable a tougher approach to the handling of weak cases.

The Act introduces a new statutory right to paid time off work for trade union 'learning representatives', where the union is recognised by the employer, to carry out a range of duties, including advising union members about learning or training matters. ACAS is currently consulting on revisions to its code of practice on time off for union duties to take account of the new rights. This aspect of the Act is not expected to take effect before 2003. A future EIRO feature will examine the significance of the new rights for union learning representatives in more detail. Equal pay questionnaires Employees bringing equal pay claims will have the right to serve a questionnaire on their employers seeking information relevant to their claim or potential claim. This is in line with existing legislation covering sex, race and disability discrimination. Regulations on this issue are due to be laid before the end of 2002 for implementation in early 2003. Employer and trade union views The Employment Act 2002 ( c 22) is a UK Act of Parliament, which made a series of amendments to existing UK labour law. changes to other aspects of the employee’s terms and conditions as specified in regulations by the secretary of state.Employees wishing to take maternity leave will need to notify their employer by the 15th week before the expected week of childbirth. All notice periods, e.g. on changes to the start of maternity leave or with the expected return date, will be 28 days. The Government estimates that 3.8 million mothers and fathers will be eligible to make these requests. There is a target consent rate of 82%. The Government have said that if the target is not met, the policy will be considered and a review is promised in any event after 3 years. The Act sets out a procedure and timetable which employers must follow in responding to such an application, which will be fleshed out by regulations. The employer must arrange a meeting, within 28 days of receiving an application, to discuss the employee’s request, at which the employee may be accompanied by a representative. The employee must be informed of the employer’s decision within 14 days, and the employee has a further 14 days to appeal. The adoption leave provisions will mean that employees will have a right to take 26 weeks "ordinary" adoption leave, followed by 26 weeks unpaid additional adoption leave. The employee seeking adoption leave must produce a Matching Certificate from an approved adoption agency. The adoption can be of a child from overseas, but the child placed for adoption must be under 18. The leave can begin no earlier than 14 days before the expected date of placement and no later than the date on which a child is placed for adoption.

A range of improvements to employees’ existing parental leave rights ( UK9912144F) will take effect from April 2003. These include: Paternity leave is when a male counterpart is able to have time off to spend with the child and the mother while receiving paid leave.

The Employment Act, which reached the UK statute book in July 2002, introduces new provisions concerning 'family-friendly' working, the resolution of individual disputes at the workplace, equal treatment for fixed-term employees and other matters. This feature summarises its main requirements and the timetable for their implementation, and looks at employer and trade union views of the new legislation. award costs against a party’s representative for conducting the proceedings unreasonably (though ministers have made it clear that this will not apply in the case of representatives of 'not-for-profit' organisations, eg trade union officers); and