Employment law changes October 1

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Employment law changes effective from October 1

October 1 introduces a series of important changes to employment law in the workplace, covering new statutory dispute resolution and dismissal procedures, new rights for people with disabilities, changes to the National Minimum Wage, and revised Employment Tribunal procedures.

It has also been announced at short notice that sections of the Employment Relations Act 2004 are to be implemented from October 1 as well. These affect the role of the companion in the right to be accompanied at disciplinary hearings, and protection for union members from detriment in relation to union membership.

Statutory disciplinary, dismissal and grievance procedures

New statutory minimum disciplinary, dismissal and grievance procedures have to be used by all employers with effect from October 1.

There is a three-step procedure that has to be followed except in rare cases of gross misconduct, where there is a modified two-step procedure.

From 1 October, all employers will be required to issue a written document that sets out their disciplinary rules and the new minimum procedures. This will only affect employers who haven’t already made this information available to their staff or if their current procedures don’t meet the new minimum standard.

The three steps are:

1) a written statement setting out what the employee has done;
2) a meeting or hearing to discuss the contents of the written statement;
3) an appeal meeting.

A similar three-step procedure applies to dealing with employee grievances.

See our free guidance to the new procedures, disciplinary and grievance.

Disability discrimination in employment

For many years, smaller workplaces with less than 15 employees, which are estimated to include as many as 90 per cent of UK workplaces, have been exempt from compliance with the employment provisions of the Disability Discrimination Act.

But from October 1 the exemption disappears and now all employers must be aware of their duties to make reasonable adjustments to accommodate employees or job applicants who have a disability.

Employers cannot discriminate against a disabled person:

in the recruitment process
in their terms and conditions of employment
in chances for promotion, transfer, training or other benefits
by dismissing them unfairly
by treating them less fairly than other workers
by subjecting them to harassment

Employers have a duty to make reasonable adjustments for disabled job applicants or staff when a policy or practice or a physical feature of their premises, places the disabled person at a substantial disadvantage.

Some examples of reasonable adjustments are:

making adjustments to premises
altering the person's working hours
allowing absences during working hours for medical treatment
giving additional training
getting special equipment or modifying existing equipment
changing instructions or reference manuals
providing additional supervision and/or support.

In addition to extending the Disability Discrimination Act to all employers, October 1st also sees the bringing into force of Part 3 of the Act. This applies to discrimination by service providers against disabled people.

Anyone who provides services to the public in the UK is a service provider whether the service is paid for or not. Just allowing the public into a building constitutes provision of a service to them namely provision of access to and from that place. It is illegal for service providers to discriminate by treating disabled people less favourably for a reason related to their disability.

They must also make reasonable adjustments to help disabled people in the way they provide their services. From 1st October 2004 service providers have a duty to make reasonable adjustments to the physical features of their premises to overcome physical barriers for disabled people.

Many UK employers must not only put in place policies and procedures to implement the DDA in their relationships with their employees but also will have to consider how they provide services to the public.

National Minimum Wage

Rates go up from October 1, a new rate is introduced that applies to young workers for the first time, and the way employers calculate the earnings of workers paid by output is changed.

Main (adult) rate for workers aged 22 and over: £4.85 per hour from 1 October 2004 (an increase from £4.50 an hour).

Development rate for workers aged 18-21 inclusive: £4.10 per hour from 1 October 2004 (an increase from £3.80 an hour).

The development rate can also apply to workers aged 22 and above during their first 6 months in a new job with a new employer and who are receiving accredited training.

A new rate for 16 and 17 year olds (above compulsory school leaving age): £3.00 per hour from 1 October 2004. 16 and 17 year old apprentices will be exempt from the new young workers rate.

In England and Wales: a person is no longer of compulsory school age after the last Friday of June of the school year in which their 16th birthday occurs.

In Northern Ireland: a person is no longer of compulsory school age after the 30th June of the school year in which their 16th birthday occurs.

In Scotland: pupils whose 16th birthday falls between 1st March and 30th September may not leave before the 31st May of that year. Pupils aged 16 on or between 1st October and the last day of February may not leave until the start of the Christmas holidays in that school year.

The existing fair estimate system for output workers has been replaced by a system of fair piece rates called ‘rated output work’.

The new scheme applies where the employer does not control the hours that the worker works or how long he spends producing an individual item. Regulations provide how an employer should calculate a “mean hourly output”, i.e. the average number of items that can be produced in an hour.

Employment Relations Act 2004

Sections 29 to 32 of the Employment Relations Act 2004 (inducements and detriments in respect of membership, etc of independent trade union) and Sections 37 and 38 of the Employment Relations Act 2004 (role of companion at disciplinary or grievance hearing and extension of jurisdiction of Employment Appeal Tribunal) are to come into force on 1 October 2004.

Sections 29 to 32 of the Act introduce measures that establish rights for workers not to be offered inducements relating to trade union membership and collective bargaining and extend their rights not to suffer detrimental action in circumstances relating to union membership.

Sections 37 and 38 of the Employment Relations Act 2004 relate to the role of companion at disciplinary or grievance hearing and extension of jurisdiction of the Employment Appeal Tribunal.

The Employment Relations Act 1999 (“the 1999 Act”) provides a right for workers to be accompanied by certain trade union officials or fellow workers at non-trivial disciplinary and grievance hearings. The 1999 Act, in essence, provided that the companion could address meetings and confer with the worker but was not permitted to answer questions on behalf of the worker.

Section 37 of the new Employment Relations Act 2004 further clarifies the role of the companion at such disciplinary and grievance hearings, by amending section 10 of the 1999 Act.

Under the amended law, the employer must allow the companion to address the hearing to put the worker’s case; to sum up that case; and to respond on the worker’s behalf to any view expressed at the hearing. The companion may still confer with the worker during the hearing.

The companion will therefore normally be able to address the hearing both at the beginning end of the hearing and will also have the opportunity to respond to views expressed.

The amended law also provides that the employer is not required to permit the companion to answer questions on the worker’s behalf, address the hearing if the worker indicates that he does not wish the companion to do so, or use the powers in a way that prevents the employer from explaining his case or any other person making his contribution.

Section 37 also amends section 12 of the 1999 Act to make it clear that where a worker attends a hearing as the companion of another worker, he is protected against detriment and dismissal not only in respect of the act of accompanying the worker but also for addressing or seeking to address the hearing.

Section 38 ensures that the Employment Appeal Tribunal has jurisdiction to hear appeals against employment tribunal decisions in relation to the “right to be accompanied”.

Employment Tribunals

New Employment Tribunal Rules of Procedure introduced to implement the Tribunal reform provisions of the Employment Act 2002, and to implement the recommendations of the Employment Tribunal System Taskforce.