The secret of change is to focus all your energy, not in fighting the old, but in building the new.
Socrates [Advocate of Philosophy]
The definition of change is to make different; to cause to pass from one state to another; as, to change the position, character, or appearance of a thing; to change the countenance.
With regard to the changes to employment law procedures that will take place as from 06 April 2014, we take the quote from the late John F Kennedy as being very appropriate;
Change is the law of life. And those who look only to the past or present are certain to miss the future.
The quote is relevant, when applied to the proposed changes in employment law procedures, as it allows one to appreciate the fact that legislation must be redefined, in order to adapt to changes in society or a recognition that substantial flaws need to be rectified, so that the process of change will complement the future.
For those who have been involved in Employment Tribunal procedures and have represented both Respondent and Claimant, you would inevitably have come across those cases that you believe should never have progressed to a full merits hearing.
From experience, the main reason a case progresses to an Employment Tribunal, is because one of the parties refuses to see reason and discuss the issues under review amicably, resulting in what could lead to a 3-5 day hearing of pure and utter nonsense.
Therefore a change to the procedure is necessary, as without such a change the process becomes an unnecessary cost to the tax payer and the process would be in danger of losing credibility, in the interest of justice.
ACAS Conciliation and Judicial Mediation have both been an essential part of the employment law procedure for a number of years.
An effective mediation process involves emotional support that we believe is essential within working environments.
In this sense when applied to employment law issues, it involves listening, supporting, encouraging and befriending.
A change to how employment law issues are dealt with is necessary, in order to gain a resolution that is satisfactory for all concerned with regard to the dispute that is under review. An employment tribunal hearing may not always be the solution.
However if a matter progresses to an Employment Tribunal after every effort has been made to handle the matter effectively, then the vexatious personage, whether Claimant or Respondent, will no doubt be exposed and will be vulnerable to the legal penalty that the Employment Tribunal have powers to impose.
1. Discrimination questionnaire repealed
As from 6 April 2014, the statutory procedure that enables an employee to obtain information from their employer with regards to allegations of discrimination, to be provided as evidence in an Employment Tribunal has been repealed by the Enterprise and Regulatory Reform Act 2013.
However, this would not deter the representative of the Claimant requesting written answers to questions that are relevant to the proceedings. Therefore the Claimant is not disadvantaged by the repeal and the Respondent must not feel that they can avoid answering certain questions that are of significant importance with regard to the allegations against them.
2. Early conciliation with ACAS
As from 06 April 2014, employees who wish to lodge an employment tribunal claim must lodge their proposed application to the employment tribunal with ACAS.
The Enterprise and Regulatory Reform Act 2013 introduced such a requirement in the hope that the matters that have caused the dispute are discussed during conciliation with a conciliation officer and may be resolved confidentially
This process had been introduced a few years ago under the Pre – Conciliation procedure that allowed the parties to discuss the issues that where in dispute before an application was presented by the Claimant to the Employment Tribunal.
A more formal approach to this procedure may prove cost effective for all concerned in avoiding a hearing in an Employment Tribunal.
3. Financial penalties imposed on employers that breach employment rights
As from April 2014, a financial penalty against employers that are in breach of employment rights where the breach has one or more aggravating features may be imposed by the employment Tribunals.
‘An ounce of prevention is worth a pound of cure.’
This expression means that is better to try to avoid problems in the first place, rather than trying to fix them once they arise
Employers may be well advised to employ a Dispute Resolution Service, which may start with a review of internal grievance or disciplinary procedures, that may require further investigation and inquiry from an accredited professional who is totally impartial with regard to the dispute and the parties’ involved in the dispute.
The Employment Tribunal will examine the responses of the employer, with regard to the issues under review, pursuant to SECTION 98 of the Employment Rights Act 1998.
If the conduct of the employer is held to be unreasonable, the employee will be successful in their application to the Employment Tribunal.
4. Flexible working extended to all employees
The Government has confirmed an implementation date of 6 April 2014 under The Children and Families Bill for the extension of the right to request flexible working, which currently applies to employees who have children under the age of 17 (the age of18 if a child is disabled) or who are carers, to all employees.
There will be a duty by employers to deal with the request in a reasonable manner.
This is recognition that a flexible approach to working may be requested for a broad spectrum of reasons, due to real life events, that adversely affect a set routine with regard to working obligations.
5. Statutory rates increase
The rate of statutory maternity pay, ordinary and additional statutory paternity pay and statutory adoption pay, and the standard rate of statutory sick pay, increase on 6 April 2014.
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