Articles
Employment Act 2002 - Is the hype right?
If one takes a holistic approach to this employment legislation, then the fears for employers as expressed by very many journalists, observers and employers would seem to be correct. Employment legislation should, by its very nature, seek to regulate in a fair and proper way the relationship between employer and employee, such as to enhance good industrial relations and better company performance.
It seems clear that the pendulum has now swung too far in favour of the employee – a view that appears to have considerable support. The bureaucracy imposed upon an employer, actually mitigates against good industrial relations. As an example, there have been numerous occasions where the management of a company has taken advice on the action they can impose upon an employee who is a persistent "offender".The question is always then raised about previous warnings or formal discussions which the employee has had with a superior. More often than not, the answer comes back that there have been no formal discussions, but a lot of informal discussion – because it is felt by the immediate middle management that informal warnings are more likely to maintain good relationships and encourage the employee concerned to act in accordance with the requirements of the company. The difficulty is, that without the formal and precise following of the ACAS guidelines, the employer is disadvantaged by his reasonable attitude with the employee. However, it seems that the Employment Act 2002 is not a sudden and drastic piece of legislation, but simply a continuation of a trend that has been going on for a number of years. The terms of the Act are well known, and indeed we circulated these in short form late last year. If any client would like a copy (or a further copy) of these, please do contact us. The Act does impose greater rights for employees, particularly with regard to flexible working, and maternity rights. The astute company has to be aware of the problems that this legislation brings, and to act accordingly. It is more important than ever to ensure that staff contracts are properly and carefully drafted to protect the company so far as they are able; that those dealing with staff issues are fully aware of the issues involved and the way to deal with problems as they arise. This applies not only to those who are normally involved in these areas such as lawyers and HR personnel, but also management involved in making employment decisions on a daily or even hourly basis. In addition, the procedures under the disciplinary and other regulations must be carefully drafted to ensure that they do not fall foul of any legislation or tribunal decision. The good piece of news so far as employers are concerned is that tribunals do appear now, on a statistical basis, to be more willing to grant costs against employees for bringing frivolous claims, although the instances are still relatively small. Let us hope that this is part of a realisation that the law should be the servant of good employer/employee relations, not the master.