Employment Law Update - August 2023
This month’s employment law update will cover how important it is to manage a disciplinary process, changes to flexible working measures and the Protection from Redundancy (Pregnancy and Family Leave) Act 2023.
Managing the Disciplinary Process Maintaining a productive and harmonious work environment is essential for any successful business. One way to achieve this is by having a well-defined disciplinary procedure. Disciplinary isn’t just about reprimanding employees but it is about creating an atmosphere that ensures fairness, accountability and growth.
A structured disciplinary procedure provides a consistent framework for addressing misconduct or poor performance. This enables employers to treat all employees equally and fairly which can help build trust in an organisation where everyone knows that the same rules and consequences apply to everybody. This in turn discourages favouritism and helps foster a sense of equity.
A well-defined disciplinary procedure outlines expectations and standards of behaviour by highlighting what is considered unacceptable conduct. An example of this could be having sickness absence triggers clearly communicated to employees that disciplinary action may take place if they have been hit and what this procedure looks like. Disciplinary procedures can give employees the opportunity to improve and highlight any issues they may be facing and what can be done to support their needs and offer guidance and training if necessary. They can also act as a deterrent against misconduct and poor performance as employees are more likely to think twice if they know their actions could lead to disciplinary action. Following a structured disciplinary procedure ensures that organisations are complying with employment laws and regulations. If the procedure isn’t followed correctly, this can lead to legal claims resulting in an employment tribunal. In 2019, an employee of an NHS Trust who resigned in response to the issuing of an informal ‘improvement notice’, which was inconsistent with their employer’s policy, was constructively dismissed. They had been employed by the trust for 40 years and had a clean disciplinary record. They were given an improvement notice in regard to a mistake being made where they forgot to switch on the incubators before she went home ill which could have lead to serious consequences. The employee handed in their resignation as they felt that there was a breach of trust and confidence, and as a result of that she had been constructively dismissed. The employment tribunal found that the Trust’s disciplinary policy clearly stated that there would be an informal meeting with an employee before issuing an improvement notice. In this case, there hadn’t been an informal meeting which meant that the procedure hadn’t been followed which resulted in constructive dismissal. This is a reminder that in order to prevent creating constructive unfair dismissal risks, its important to follow policies set out in your employee handbook, including the steps of informal measures. If you need any support or guidance with managing your disciplinary procedure and policy, please get in touch. Flexible Working Measures The Employment Relations Flexible Working Bill achieved Royal Assent on 20th July 2023 meaning that workers have more flexibility over where and when they work. Workers have the right to request flexible working from day one of a new job, with employers required to consider any requests and provide a reason before rejection. Flexible working can relate to working hours, working pattern, part time, full time, compressed hours or adjusting start and finish times. It can also include flexibility over where somebody works from. This benefits workers as well as employers as those who embrace flexible working can attract more talent from further afield and improve staff motivation, just to name a few. The new law is expected to come into force in 2024 and we will keep you updated with any changes. Protection from Redundancy (Pregnancy and Family Leave) Act 2023 The Protection from Redundancy (Pregnancy and Family Leave) Act 2023 came into force on 24th July 2023. The new law will enable the government to increase protections from redundancy for pregnant workers and new parents who have recently returned to work. The Act requires secondary legislation to be put in place but the Act itself suggests the following provisions:
The protected period of pregnancy may be set out in secondary legislation but may include a period after the end of the pregnancy.
During the protected period, an employer may be required to offer alternative employment.
A failure to comply with the provisions of the Act may result in the dismissal being treated as unfair.
The Act also amends sections in the Employment Rights Act 1996 which relate to redundancy protections where they are extended to cover the period during or after maternity, adoption and shared parental leave. The key change is that the Act emphasises that employers must take extra care to ensure that suitable alternative roles are offered if they are available in a redundancy situation. No timescale has been given for secondary legislation.
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