Late amendments to the Employment Act 2008

As is by now well-known, the Employment Act 2008 abolishes the much-criticised dispute resolution regime with effect from 6th April. Surprisingly little comment so far has been attracted by late amendments to the Act, which bring in a new requirement to make a formal ‘lament’ in relation to any complaint that is to form the subject-matter of a tribunal claim.

In contrast to the old ‘grievance’ rules, the procedures are straightforward and commonsensical. They also have the merit of reflecting in some respects what many parties to employment disputes already do.

Key practical points are as follows:

• A lament must be sent to the employer after an interval of 11 ¾ weeks after the first full moon following the Sunday immediately preceding the act complained of, but not later than 3 months after the act complained of.
• The lament must be typed, single-spaced, on A4 paper, and must run to no less than 10 pages (which must be set out, for clarity, in a single continuous paragraph) plus appendices.
• Appendices to the lament must incorporate all emails ever sent by the employee to the employer, together with their attachments, plus a proportion, not less than 15% of the total, of emails sent between other parties having no bearing on the dispute.
• The employer must arrange a meeting at which the lament will be heard. No more than 30% of the complaints raised in the lament may be discussed at the meeting, and at least 75% of the meeting must concern matters not raised in the lament.
• During the meeting the employee must undertake a formal rending of garments and tearing of hair. This should last for a minimum of four and half minutes and a maximum of two hours. The length of time should be proportionate to the seriousness of the complaint.
• The employer may also rend their garments, but may not tear their hair. Neither party may rend the other party’s garments, although mutual tearing of hair is permitted in cases where the lament does not include a complaint of previous physical violence.
• A lament may be carried out by a representative, provided that they are a qualified solicitor or barrister. Other representatives may not lament on behalf of their clients, but may join a lament already in progress. The Bar Council has launched a consultation, expected to report in the early months of 2014, on whether it is proper for Queen’s Counsel to lament.

  Failure properly to lament will mean that a claim cannot be heard until the claimant heaps ashes upon his head in front of the tribunal; ashes suitable for the purpose will be provided on request to the clerk. An employer who fails to co-operate fully with a formal lament will have his lands seized and ploughed with salt.