EMPLOYMENT LAW

Employment Law

Table of Contents

Abstract2

Chapter I3

1 Summary of the Employment Law 20084

1.2 Repeal Of Statutory Dispute Resolution Procedures4

1.3 New Regime4

1.4 Transitional Provisions6

1.5 Impact of the Code7

1.6 Difficult Areas Of The Code8

1.7 Next Steps9

Chapter II11

2. Employment Act 200811

3. History14

4. Vexatious Litigants19

5. Repeal of the Statutory Dispute Resolution Procedures21

6. Draft Acas Code30

7. Employment Tribunal Reforms34

8. Alternative Dispute Resolution38

Chapter III40

9. Conclusion40

References45

Employment Law

Abstract

This article will analyze Employment Act 2008 on employment dispute resolution and in particular the repeal of the statutory workplace dispute resolution procedures only four years after Regulations implemented them. It will begin by considering the background of increasing tribunal caseload that led to their introduction in the first place. Later sections will examine the replacement of these statutory procedures with what Ministers described as the triple package of a new Advisory Conciliation and Arbitration Service ('ACAS') helpline, increased ACAS conciliation and a revised ACAS Code. The language of repeal and the Act's reintroduction of the Polkey line of cases might suggest that dismissal law is merely reverting back to its pre October 2004 position. This article will, however, conclude that Part One does not just 'simplify' dismissal law, or 'return' the law to September 2004 or indeed to any other time frame. Instead, it weakens key procedural protections for employees potentially by conflating the 2002 Act's different tests of 'automatically' unfair and 'ordinarily' unfair dismissals, for example. Lowering standards of procedural justice is significant in itself but this takes added importance for dismissed employees as tribunals rarely investigate the substantive fairness of dismissals.

Chapter I

1 Summary of the Employment Law 2008

The Employment Act 2008 received Royal Assent on 13 November 2008 and is intended to enhance, simplify and clarify key areas of UK employment law. The most significant change introduced by the Act on 6 April 2009 is the repeal of the Statutory Dispute Resolution Procedures. These procedures have been unpopular since their introduction in 2004, largely due to the fact that they were complicated and raised a number of significant legal issues. Initially intended to reduce the number of Employment Tribunal claims, they have had the opposite effect and their repeal is welcomed by all, but not with some trepidation as to their replacement

1.2 Repeal Of Statutory Dispute Resolution Procedures

The Statutory Dispute Resolution Procedures were heavily criticized with many saying they gave rise to more workplace disputes than were resolved. However, what is replacing the old statutory procedures and will it be any better?

1.3 New Regime

The Statutory Dispute Resolution Procedures have been replaced by the ACAS Code of Practice on Disciplinary and Grievance Procedures ("the Code") and a non statutory Guide to Discipline and Grievances at Work ("the Guide"), which aims to allow for a more flexible approach to deal with disciplinary and grievance issues rather than the previous "one size fits all" approach (Hansard, 2008).

The main points to note are:

The Code will not be legally binding but its provisions will be taken into account by Employment Tribunals, where appropriate.

A failure to comply with the Code will not automatically make a ...