Employment Act will prompt organisations to put staff first

Employment Relations Minister Alan Johnson (pictured right) talks
exclusively to Personnel Today about the impact of the Employment Act – the
biggest raft of workplace legislation ever introduced in one bill. He discusses
the new rights in detail and responds to criticism from the profession.  EXCLUSIVE interview by Ben Willmott

Flexible working

Some employment law specialists believe the new right for parents to request
flexible working will not have as big an impact as the Government hopes,
because it is too easy for employers to play the ‘business case’ card for
rejecting requests.

Q. Are you confident that employers will embrace the new right to help
their working parents improve their work-life balance?

A. The right has been designed to be straightforward, with the
emphasis on dialogue and finding solutions in-house, rather than through the
‘wagging finger’ of the law. It is based on existing best practice and aims to
help employees and employers adopt solutions that suit them both. This is a
real chance for employers to show that they can respond to such an approach.

Consultation has been central to the development of the right, and we have
listened to the views of both employer and employee groups. There may well be
some resistance, but I think the vast majority of employers will accept the
regulations in the spirit in which they are intended.

Q. Why is it in their interests to do so?

A. Competition in the job market goes both ways. Employers look for
the right people, but employees are becoming increasingly selective over their
choice of employer. This right offers employers a way of attracting and
retaining the staff they need to succeed. Employers who offer flexible working
report benefits such as reduced staff turnover and absenteeism, increased
skills retention, reduced recruitment and training costs and increased capacity
to meet customer demand and to react to market changes.

These benefits cannot be ignored. In the first quarter of last year the cost
of sick leave was more than two million working days each week alone – equivalent
to 2 per cent of total scheduled working days. And last year, the CIPD reported
that half of all employers had experienced problems with staff retention. They
also estimate that the typical recruitment cost for replacing an individual is

Q. Would the Government consider legislation to enforce flexible working
hours for parents if the voluntary approach doesn’t work?

A. This legislation is not voluntary. The law places a duty on
employers to follow a procedure to ensure their employees are confident their
requests are considered seriously. Employers who do not comply risk being taken
to an employment tribunal and ordered to reconsider the case and/or pay
compensation of up to eight weeks’ pay. We believe this will be incentive
enough to encourage all but the most resistant employers to comply.

We have also ensured a package of support is available to help employers.
Accompanying the main guidance is a set of forms to help employers at each
stage of considering the application.

We are committed to start reviewing the new right in three years time. We
have just carried out two surveys to take a snapshot of current practice and we
will continue to monitor the impact.

Paternity and parental leave

The DTI recently came under fire from the CBI and the CIPD after it hinted
it is considering extending paternity leave and parental leave rights before the
new legislation has had time to bed down.

Q. What was the reason for providing such an early steer on extending the

A. Our Balancing work and family life report launched jointly by the
Treasury and DTI on 14 January 2003, sets out the Government’s strategy to
helping working parents, and details the April 2003 changes. It also looks
ahead and invites views on future options once the April 2003 changes have
bedded down.

It states up-front the Government’s commitment to reviewing the duty to
consider requests for flexible working in three years time.

Possible next steps in the report include allowing parents to use their full
parental leave as one block at the end of maternity, paternity or adoption
leave, whether to allow fathers time off to attend ante-natal care classes, and
extending the period of paid paternity leave.

The report makes it very clear that time will be needed to bed down rights
effective from this month before considering any further changes.

Equal Pay Questionnaire

Under the Employment Act, the questionnaires give employees the right to
request pay information on a comparable worker of the opposite sex. They are
voluntary, but employers that refuse requests are likely to be penalised if
taken to an employment tribunal.

Q. How powerful a tool could the equal pay questionnaire be in helping to
tackle pay inequalities in the workplace?

A. The lack of transparency on pay information has helped to
perpetuate the gender pay gap. The questionnaire should help people – mainly women
– to establish whether they are actually being paid less than their comparators
and, if so, why. It will also provide a formal route to obtain information
about relevant issues such as details of pay schemes and job grading systems,
as well as how skills and experience are reflected in the company’s pay system.

Establishing the key facts quickly should encourage the issues to be settled
without resorting to tribunal, benefiting both employers and employees.

Q. Although it is voluntary, employers that refuse to co-operate could be
penalised at employment tribunal. Could it effectively force more employers to
carry out pay audits?

A. The questionnaire will not force employers to carry out pay

However, we would certainly encourage employers to carry out pay reviews and
tackle any equal pay problems that emerge. It makes sense to sort out problems
in the workplace and avoid going down the tribunal case route wherever

We are leading by example, and all Government departments and agencies
representing more than half a million employees are committed to completing an
equal pay review by this month.

Q. The Engineering Employers’ Federation has called for clarification
from the DTI to help ensure employers do not breach data protection rules when
providing information on employees pay under the questionnaire initiative. Is
this a legitimate concern?

A. The questionnaire will not alter the common law duty of confidence
that all employers have towards their employees, nor their obligations under
the Data Protection Act 1998. Where information is confidential, an employer
would only be able to disclose the information if they had the consent of the
person in question, where there is a legal obligation to do so, or where there
is a strong public interest requirement.

I accept that in some cases employers may not be prepared to provide
information that they believe is confidential. But if the case then proceeds to
a tribunal complaint, tribunals could order disclosure of relevant information
if they believed it was in the interests of justice to do so.

Importantly, it is unlikely that a tribunal would consider that an employer
had acted unreasonably simply because they had erred on the side of caution.

Statutory grievance procedures

Under the Employment Act, organisations will have to ensure they have
minimum standards in grievance procedures, which they and their staff must
follow before workplace disputes are taken to employment tribunals. This
section of the Act is not due to come into force until April next year.

It has been argued that the statutory grievance procedures could lead to
some employers downgrading comprehensive existing grievance procedures and
adopting the new minimum standards.

Q. Are you concerned that this might be a problem?

A. Not at all. Good employers will always want to apply established
good practice over and above the statutory minimum. Standards haven’t been
driven down in other areas where we have legislated for decent minimum
standards, such as the National Minimum Wage, for example.

There is a very important role here for Acas guidance. Its Code of Practice
on disciplinary and grievance procedures provides sensible guidance. It gives
practical advice on how to follow the statutory procedures – for example, in
ensuring meetings are reasonably conducted. The guidance can also identify
where other, additional procedural actions might be beneficial – such as how
informal discussions can be handled, or investigations conducted. Finally, it
gives tailored advice to small organisations.

Q. Is the DTI confident that this measure will contribute to a reduction
in the number of employment tribunal applications?

A. Yes. There has been a general upward trend in tribunal caseloads
across the board for more than a decade, in long-established rights as well as
new ones.

The way to tackle this trend is through improved communication in the
workplace. For example, in 64 per cent of tribunal cases the employer and
employee did not meet each other to attempt to resolve the dispute before the
application was made, and in almost half of all tribunal cases, employers had
no written procedure for dealing with grievances.

Making the workplace the primary place to solve disputes should clearly
reduce the number of employment tribunal applications over time.

Learning representatives

The Employment Act gives union learning representatives statutory rights to
promote workplace learning.

The Employers Forum on Statute and Practice (EFSP) has called for more
clarification on the remit of learning representatives – for example, whether
they can commission training.

The EFSP’s chief executive Robbie Gilbert believes that uncertainty over
learning representatives’ roles could lead to clashes with organisations’
training departments.

Q. Do you think more guidance is necessary to prevent confusion over the
role of learning representatives?

A. I do not believe there is any ambiguity in the Government’s
proposals to give statutory backing to union learning representatives (ULRs).
Section 43 of the Employment Act 2002 clearly sets out the functions which ULRs
are allowed time off for.

We intend to bring this into effect in spring this year, following
Parliamentary approval of the revised Acas Code of Practice on Time Off for
Trade Union Duties and Activities. This has recently been amended to include
guidance on time off and training for ULRs.

The revised code gives clear guidance that ULRs should liaise with their
employers to ensure their respective training activities complement one another
and that the scope for duplication is minimised. It also points out the
positive advantages for employers and trade unions in establishing agreements
on time off in ways that reflect their own situations.

We are aware, however, that some employers are concerned that there is not
enough general guidance on the role of ULRs. To meet this concern, next month
the Department for Education and Skills plans to issue a good practice guide
for employers that will provide further details on the roles and
responsibilities of ULRs. This will complement the revised Acas Code and
provide illustrative case studies of the positive benefits for employers in
working closely with ULRs.


Employment Bill – changes to maternity, paternity and adoption rights:
A clear guide to the impact of the changes www.personneltoday.com/goto/13712

Flexible working and the response to requests for it: What qualifies
an employee to make a request  www.personneltoday.com/goto/11982

Equal pay questionnaire guidance: Guidance for employers on how to
respond to requests for the questionnaire www.personneltoday.com/goto/18148

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