By Jane Kissack, Employment Lawyer and member of the Employment Law Training team and William Dawson, Partner and Head of Employment Department, Simmons & Simmons (william.dawson@simmons-simmons.com)
A number of significant developments are scheduled for 2003. Most of the Employment Act 2002 will come into force (maternity, paternity and adoptive leave changes and the right to request flexible working will come in from 6 April 2003; new statutory disciplinary and grievance procedures are expected in the autumn) and the scope of discrimination law will be widened. The issue of information management will continue to dominate the HR Agenda - the final (monitoring) part of the Data Protection Code is overdue. The Government is also consulting about data subject access requests - those who have tackled such requests will watch with interest.
A common theme linking the developments is the need for transparency. The summary below suggests some action points.
More than before, managers will need to be able to explain recruitment, remuneration and career progression decisions showing that objective reasons underlie them. The following are some of the issues that must be addressed through policies and management training:
- Maternity - how will increased leave of up to one year link with remuneration decisions, particularly bonus? Managers will need to be able to explain bonus decisions by reference to objective criteria.
- Flexible work requests - policies must comply with statutory rules for handling requests (ie time limits, meetings and a right of appeal). The summary below provides the main requirements. Will your policy go further than the law and cover all staff rather than just parents with children under 6? Having accommodated requests, will it be possible to accommodate future requests? Will flexible arrangements be only for limited periods, in order to accommodate new requests? Key is that managers adopt a consistent, fair approach and communicate (and document) at the outset the arrangement and the basis for changing/ending it. And remember, refusals to accommodate flexible work requests may still be challenged as sex discrimination - a documented procedure will be very helpful if the decision is challenged.
- Religion/belief and sexual orientation discrimination - when the legislation is finalised you will need to review policies (eg holiday, flexible working, benefit availability) and test if there is objective justification where policies potentially discriminate.
- Subject access requests - educate managers in good information management. Managers must feel comfortable that notes, emails and memos can be seen by the subjects they are written about as well as an Employment Tribunal. Storage, circulation and retention of documents should be in line with internal guidance. Marking emails/notes "confidential" or "off the record" will seldom avoid disclosure in a Tribunal.
Flexible working - the main requirements (taken from draft Regulations published December 2002)
- new right to request contract variation (to hours/times of work or to work from home);
- applications must be in writing (email counts);
- there must be a meeting to discuss the application (within 28 days) unless the employer approves the application;
- employer must give written notice of decision (within 14 days of meeting);
- employee has a right of appeal (must be exercised within 14 days of notice; appeal hearing must be within 14 days of appeal notice);
- outcome of appeal to be given in writing (within 14 days of appeal hearing);
- employee has right to be accompanied to any meeting.
So what are the main action points now?
- update maternity policy;
- update or introduce paternity/adoptive leave policy;
- update or introduce flexible working policy;
- develop/keep under review information management and monitoring policies;
- review contracts, policies and management practice in light of new discrimination laws;
- review disciplinary/grievance procedures in light of new statutory procedures;
- communicate changes to workforce;
- provide training/guidance for HR/managers on implementation.
This article was first published in the January 2003 issue of People Matters.