Acas has published an initial draft Code on settlement discussions, for consultation until 9 April 2013. This relates to the provisions in the Enterprise and Regulatory Reform Bill to enable employers to hold termination settlement discussions prior to starting a disciplinary or performance management process without the risk of the discussion being referred to in an ordinary unfair dismissal claim, unless there has been “improper conduct”. These are expected to come into force in summer 2013.
The key part of the draft Code focuses on what is meant by improper behaviour, which Acas suggests includes discriminatory or unlawful conduct and “putting undue pressure on a party”. Examples of undue pressure are given, including an employer allowing less than seven days to consider the offer or reducing the value of the offer within this time, an employer threatening dismissal if the offer is rejected, or an employee threatening to undermine the employer’s public reputation. Acas is seeking views whether these examples are appropriate and whether other examples of improper and acceptable behaviour should be included.
Acas is also consulting until 20 May 2013 on a draft statutory Code on dealing with the new extended right to request flexible work due to be introduced in 2014.
The Children and Families Bill includes provisions to extend the right to all employees with 26 weeks’ service and replace the statutory process for handling requests with a more general duty to deal with requests in a “reasonable manner” and notify employees of the decision within three months unless an extension is agreed. Employers will still only be able to reject a request for flexible working based on one of the current statutory grounds.
The draft Code suggests that employees should be allowed a companion at a discussion of the request, that the presumption should be that the request will be granted unless there is a business reason for refusing, and that an employee should be able to appeal a refusal.
It does not offer suggestions of how to deal with competing requests without inadvertently discriminating – this may instead be covered by the non-statutory guidance yet to be issued.