Employment Act 2002

The Employment Act 2002 introduces statutory procedures for work place dispute resolution which, when brought into force will affect the manner in which both discipline and grievance are dealt with in the work place and make significant alterations to the law on unfair dismissal.

The Act will also introduce a number of measures which strengthen the rights of parents by introducing statutory rights to paternity and adoption leave and pay and further amending the law relating to maternity leave and pay.

Subject to approval of Parliament, it is expected that the provisions relating to maternity, paternity and adoption leave will be effective from 6th April 2003 and following the drafting of regulations the procedures for work place dispute resolution are anticipated to be in force later in 2003.

Dispute Resolution Procedures

Existing law

• Employment tribunals take into account the existence and use of disciplinary procedures when considering unfair dismissal applications.
• A failure to use procedures appropriately can result in an employment tribunal deciding a dismissal was unfair.
• Employment tribunals also consider the ACAS Code of Practice on Discipline and Grievance Procedures when considering the reasonableness of an employer’s decision to dismiss.

New Law

• The introduction of statutory dismissal and disciplinary procedures (DDPs) which employers will be obliged to follow.
• The introduction of statutory grievance procedures (GPs) supplemented by a requirement for employees to raise grievances in writing with their employers before applying to a tribunal.
• These minimum statutory disciplinary and grievance procedures will be implied in to every contract of employment requiring both parties to comply with the minimum procedures.
• Employees may be barred from presenting certain claims to employment tribunals if they have failed to comply with part or all of the relevant statutory procedures.
• Dismissals will be unfair where an employer has failed to comply with the DDPs.
• A requirement will be introduced that the DDPs be set out in an employee’s written particulars of employment.
• Employment Tribunals may, on the basis that they consider it “just and equitable” vary compensatory awards by as much as 50% (with a minimum of 10 percent) where an employer or an employee has failed to use the minimum statutory procedures.

Minimum dismissal and disciplinary procedures

• DDPs require the employee to be given a statement in writing of the allegations made against him together with an invitation for the employee to attend a meeting to discuss the matter.
• Before the meeting the employee should have a reasonable opportunity to consider his or her response to the allegations.
• Following the meeting the employer must provide the employee in writing with the decision and notify the employee of the right of appeal.
• The GP procedure is similar but commences with the employee setting out the grievance in writing and sending to the employer.

Paternity Leave

Existing Law

• Fathers are entitled to take up to thirteen weeks unpaid parental leave to care for children.

New Law

• An employee who has been continuously employed for at least twenty six weeks and who gives the appropriate notice will be entitled to two weeks paid leave at the same amount as flat rate statutory maternity pay (the lower of 90% of average weekly salary or £100.00 per week)
• The employee must produce evidence of entitlement to paternity leave including a declaration that he is the biological father of the child or is married to or the partner of the child’s mother and that he has or expects to have responsibility for the upbringing of the child. A self certificate of entitlement of paternity leave and pay will need to be completed.
• Paternity leave must be taken during the eight week period beginning with the date on which the child is born or the first day of the expected week of the child’s birth whichever is later.
• The employee must notify the employer of an intention to take paternity leave and when it is to be taken by the fifteenth week before the expected week of the child’s birth.
• Statutory paternity pay will be available in respect of a child born on or after 6th April 2003. Employers are entitled to recover payments of statutory paternity pay from the State in a similar scheme to that which exists for statutory maternity pay.

Maternity Leave

Existing Law

Ordinary Maternity Leave

• All female employees qualify with no length of service requirement.
• Leave can be taken any time from eleven weeks before the expected week of childbirth.
• All terms and conditions of employment remain unchanged during ordinary maternity leave.

Additional Maternity Leave

• Employees who have worked for over one year are entitled to an additional twenty nine weeks maternity leave (additional leave)
• Continues automatically at the end of the ordinary leave.
• Most terms and conditions of employment are suspended during additional leave.

Statutory Maternity Pay

• To qualify an employee must have twenty six weeks employment before the start of the fourteenth week before expected week of childbirth.
• Paid at 90% of full salary for six weeks followed by twelve weeks at a flat weekly rate of £75.00 (from April 2002) .
• Paid by the employer but 92% recoverable from the State (for employers who qualify under the Small Employers Relief Scheme, 100% plus 4.5% compensation is recoverable).

Law after April 2003

Ordinary Maternity Leave

• Available from first day of employment.
• Increase of paid leave to twenty six weeks.
• First claimable eleven weeks before expected week of birth.

Additional Maternity Leave

• Employee must have twenty six weeks service with employer by the time they have reached fifteen weeks before the expected week of birth.
• Maximum leave entitlement of forty one weeks from the start of the week of birth giving an overall leave entitlement of fifty two weeks if employee started maternity leave at the first possible date.

Statutory Maternity Pay

• Employee must have twenty six weeks service with the employer by the time they have reached fifteen weeks before the expected week of birth.
• Maximum duration twenty six weeks.
• Paid at 90% of full salary for first six weeks.
• Increase in the standard rate to the lower of £100.00 per week or 90 percent of wage if this is lower.
• Employers can reclaim 90 percent from the State with small employers able to recover 100 percent plus National Insurance contributions.

Protection from detriment will exist for any employee seeking to take advantage of their rights and a dismissal resulting from taking or attempt to take paternity or maternity leave will be automatically unfair.
The Act also creates rights for parents to take adoption leave when permanently adopting a child.