Q&A

This week’s legal questions and answers

Q Do we have to amend our disciplinary and grievance procedures in line
with the new statutory requirements?

A The procedures in the Employment Act 2002 are quite basic and it is
likely that, where detailed disciplinary and grievance procedures are already included
in the contract, they will go further than required under the 2002 Act. It is
expected that these procedures will be implemented in late 2003, although no
final date has been set.

The statutory procedures will not affect the provisions of any existing
disciplinary or grievance procedures which are additional to and not
inconsistent with the statutory procedure. Also, the statutory procedures will
be automatically implied into a contract of employment so they will apply
whether or not there are any details already included in the contract.

Having said that, sections 1 and 3 of the Employment Rights Act 1996 (as
amended by the 2002 Act) impose a duty to provide a written statement of
particulars including disciplinary and grievance procedures or referring to a
document, reasonably accessible to the employee, setting out those procedures.

If, following one of a number of claims (including unfair dismissal) it
becomes apparent that inadequate particulars have been given, the tribunal will
be able to award between two and four weeks’ pay (a week’s pay currently being
capped at £250).

Employers should therefore set out at the very least the minimum
disciplinary and grievance procedures either in the contract itself or in
another document referred to and reasonably accessible to the employee, such as
an employee handbook.

Where an employer already has written disciplinary and grievance procedures
it should check that they incorporate the statutory minimum procedures and are
not inconsistent with them.

Q One of my employees has informed me she is pregnant and says she is
entitled to 26 weeks’ paid leave. Is this correct?

A It depends on when her baby is due. Currently, an employee is
entitled to statutory maternity pay (SMP) for up to 18 weeks, provided that she
has 26 weeks’ service or more by the end of the 15th week before the week the
baby is due and she earns at least £72 per week.

The rules on maternity leave and maternity pay are however changing next
year, and if her expected date of childbirth is on or after 6 April 2003, she
will be able to benefit from the new provisions. This will entitle her to
receive SMP for 26 weeks.

She would be entitled to SMP worth 90 per cent of her earnings for the first
six weeks, followed by 20 weeks at the rate of 90 per cent of her earnings or
£100 per week, whichever is lower. It is worth noting that further changes to
the maternity leave provisions will mean an employee who has completed 26
weeks’ service by the end of the 15th week before the baby is due will be entitled
to 26 weeks extra maternity leave.

This is unpaid, but will mean in total, the employee will be entitled to
take maternity leave for a maximum of 52 weeks.

Paul Mander is partner in employment, pensions and incentives at Berwin
Leighton

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