Employment outlook for 2009

Q What do you think will dominate the employment law headlines in 2009?

“Redundancies, redundancies, and more redundancies. Also, employers looking for creative ways of avoiding redundancies – such as reduced working hours, reduced benefits, career breaks and so on. There is also the risk, in the current climate, of increased industrial unrest.”

Linda Jones, partner, Pinsent Masons

Age discrimination will be a key issue – especially claims from white, middle-aged men who believe their redundancy is based on age or length of service. This will be the first recession where employees have been able to raise age discrimination claims. Mediation should also be at the top of every organisation’s agenda in 2009.”

Eilidh Wiseman, head of employment law, Dundas & Wilson

The Temporary Workers Directive, which must be implemented in the UK by 5 December 2011. This gives agency workers the right to be treated equally with regards to basic working and employment conditions. The precise details have been left to the UK government to decide and in 2009, preparations for the 2011 deadline will be made.”

Vanessa James, head of employment, SA Law

“The key developments that will dominate are the changes to the statutory dismissal, disciplinary and grievance procedures, the impact of flexible working, and the changing status of temporary employees. With the economy in turmoil, the government’s stance on the removal of the working time opt–out could also feature prominently this year.”

Pam Loch, founder, Loch Associates

The extension of flexible workingfor those with children aged 16 and under, the Working Time Directive, especially the opt-out debate and the increase in holidays for temporary staff, and the Equality Bill.”

Laura Livingstone, employment partner, Davenport Lyons

“Redundancies and, depending on the success of the new Acas code, the mediation and facilitation of disputes. The issue of the working time opt–out is also likely to feature highly as we begin to deal with the fall–out from the European Parliament’s vote last month to scrap it.”

David Whincup, partner, Hammonds

“The interpretation of the new Acas codes of practice on disciplinary and grievance procedures – though test cases are not likely to reach the EAT till 2010 – and the result of ongoing equal pay claims, such as Hartley v Northumbria Healthcare NHS Trust.”

Jeremy Consitt, partner, Dolmans

Q What impact do you think the scrapping of the statutory dispute regulations will have in the workplace?

“For the seasoned employer, it will simply mean less pressure to adhere to specific procedures, with a shift to ‘overall fairness’ as opposed to a tick–box approach. As such there will be less pressure on employers to settle cases due to ‘silly’ procedural oversights.”

Vanessa James

“It will have a positive impact for employers and employees. The new code is based on principles of common sense and natural justice, and this will help to eradicate the technical complexities that have caused problems under the current rules.”

Emilie Darwin, solicitor, Rickerbys

“In the current climate, the most significant impact for employers will be not having to follow the three–step process in redundancy dismissals, and for employees it will be not having to raise a grievance before issuing a tribunal claim.”

Laura Livingstone

“Ultimately, a greater willingness by both parties to deal with grievances, with a view to resolving them rather than as merely a hostile precursor to litigation. It should also mean more emphasis on substance rather than form.”

David Whincup

“Although the poorly drafted regulations will not be missed by employment lawyers, they are being replaced by codes that have the potential to cause an equal amount of confusion for employers.”

Jeremy Consitt

“In theory, the removal of the mandatory requirement to raise a grievance before submitting a tribunal claim should lead to fewer grievances, but this might not translate into reality. We envisage that the recently published draft transitional provisions will not be straightforward, particularly the grievance provisions, and that will effectively mean we will still be dealing with the statutory grievance procedures until well into next year.”

Eilidh Wiseman

“I think most employers will be relieved that the procedures are being abolished as they have caused far more problems than they have resolved. However, there will inevitably be a period of uncertainty until we see how tribunals are going to interpret the new Acas Code of Practice.“

Linda Jones

QWhat’s your view on the Equality Bill?

“The devil will be in the detail with this Bill – employers may well find themselves struggling with yet more complex procedures when the full text is published.”

Linda Jones

“While the greatest impact will be in the public sector, the emphasis on using supplier diversity as a commercial lever should not be underestimated by those in the private sector trying to win public sector work.”

Eilidh Wiseman

“Great if it works, and a nightmare if it doesn’t.”

David Whincup

“Admirable aims by the government to de-clutter and strengthen discrimination legislation, but perhaps it’s trying to achieve too much in one piece of legislation.”

Laura Livingstone

“Employers will welcome a simplification of the discrimination laws through generic concepts and definitions, but it is important that the government gets the drafting right. So often good intentions have led to years of uncertainty and litigation as the original legislation was written in a hurry.”

Michael Delaney, partner, Matthew Arnold & Baldwin

“Arguably, the Bill does not address the underlying difficulties that face claimants bringing discrimination claims as there is often no comparator.”

Vanessa James

“The idea of codifying the existing plethora of discrimination law so that all discrimination issues can be dealt with in exactly the same way is good in principle, but it is too early to give a definitive view until one sees what further changes might be made before the Bill completes its journey through Parliament.”

Jeremy Consitt

* The collective noun for a group of lawyers.

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