Dismissal and Grievance Procedures: Framing and Operating Procedures to Meet Current Rules (Thorogood Reports)

THOROGOOD PROFESSIONAL INSIGHTS A SPECIALLY COMMISSIONED REPORT DISMISSAL AND GRIEVANCE PROCEDURES FRAMING AND OPERATI...

Author: Dennis Hunt

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THOROGOOD PROFESSIONAL INSIGHTS

A SPECIALLY COMMISSIONED REPORT

DISMISSAL AND GRIEVANCE PROCEDURES FRAMING AND OPERATING PROCEDURES TO MEET CURRENT RULES

Dennis Hunt

IFC


A SPECIALLY COMMISSIONED REPORT

DISMISSAL AND GRIEVANCE PROCEDURES FRAMING AND OPERATING PROCEDURES TO MEET CURRENT RULES

Dennis D Hunt

Thorogood Publishing Ltd

Other Thorogood Professional Insights

10-12 Rivington Street London EC2A 3DU t: 020 7749 4748 f: 020 7729 6110

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e: [email protected] w: www.thorogood.ws

Audrey Williams

Applying the Employment Act 2002 – Crucial Developments for Employers and Employees

© Dennis D Hunt 2005

Audrey Williams

reproduced, stored in a retrieval

All rights reserved. No part of this publication may be system or transmitted in any

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Employee Sickness and Fitness for Work Gillian Howard

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Successfully Defending Employment Tribunal Cases Dennis Hunt

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A CIP catalogue record for this Report is available from the British Library. ISBN 1 85418 376 1 Printed in Great Britain by printflow.com

The author Dennis Hunt began working in industrial relations and employment law in the motor industry in the 1970’s. During this time he was heavily involved in trade union negotiations and strike resolution. His experiences during this time lead him to write his first two books, Common Sense Industrial Relations in 1976 and Employment and Dismissal Without Fear in 1978. Both books were published by David and Charles. In 1977 Dennis launched his first business IRPC (Industrial Relations and Personnel Consultants). This business concentrated on providing employment law and practical personnel advice and assistance to the smaller business. The business ultimately grew to advise over 500 small businesses throughout the United Kingdom and employed over 200 employees. The business is now a part of Croner Consulting Ltd. In 1980 Dennis was awarded the Coventry City Chamber of Commerce Young Business of the year award. In 1991 Dennis launched Dennis Hunt Risk Management Services Ltd a business which concentrated on handling volume employment tribunals as well as providing advice and assistance to businesses of all sizes on employment law and related personnel problems. By 1997 and beyond, this business was handling up to 350 employment tribunals at any one time. This business, which was renamed SBJ Risk Management, was sold to the Croner Group in 2000 and now forms part of Croner Consulting Ltd. Working with Thorogood Publishing Dennis wrote Successfully Defending Employment Tribunals in 2002. The latest updated version of this report was released in April 2005. Dennis continues to work as a seminar leader and employment law consultant handling employment tribunals and related issues for his clients.


iii

Contents Introduction..................................................................................................1

1

THE LEGISLATION

4

A brief history of unfair dismissal legislation and employment tribunals .................................................................................5 Summary of changes introduced by the Employment Act 2002 ............7 The standard three step disciplinary disputes procedure.......................8 The modified disciplinary procedure.........................................................8 Default judgments........................................................................................9 Case management .......................................................................................9 ACAS conciliation .....................................................................................10 Directions hearings ...................................................................................10 Costs............................................................................................................11

2

CONTRACTS OF EMPLOYMENT

13

Contracts of employment: an introduction.............................................14 The tests of employment ..........................................................................15 Forming the contract ................................................................................17 Formalities..................................................................................................19 Contracts: the four elements ....................................................................19 The Employment Rights Act S1 – ’written statement of particulars’ ............................................................22 Changing the terms of a contract of employment ................................23 Summary.....................................................................................................24

3

DISCIPLINARY RULES

25

Disciplinary rules: an introduction ..........................................................26 Drafting the rules.......................................................................................27 Health and safety rules..............................................................................29 Communicating the disciplinary rules ....................................................30


iv

CONTENTS

4

DISCIPLINARY PROCEDURES

32

Disciplinary procedures and the law.......................................................33 Modified disciplinary procedures and gross misconduct.....................35 The ACAS guide to disciplinary procedures ..........................................37 Special situations ......................................................................................39 Summary ....................................................................................................40

5

DISCIPLINARY PROCEDURES STEP-BY-STEP

43

Investigation...............................................................................................44 Informal disciplinary action......................................................................47 Formal disciplinary action ........................................................................47 Invitations to a meeting.............................................................................48 Provision of evidence ................................................................................49 The right to be accompanied....................................................................50 The disciplinary meeting...........................................................................51 Handling disciplinary meetings ...............................................................53 Records of disciplinary meetings.............................................................56

6

DISCIPLINARY SANCTIONS

57

Disciplinary sanctions and warnings ......................................................58 Poor performance issues – capability......................................................60 Sickness, lateness and absence ................................................................60 Misconduct and gross misconduct ..........................................................63

7

ENDING EMPLOYMENT

66

How employment can end ........................................................................67 Resignation.................................................................................................67 Termination by mutual agreement...........................................................69 Compromise agreements..........................................................................70 Requirements of a compromise agreement............................................71 Independence of adviser...........................................................................72 The conclusion of a fixed term contract..................................................73


v

CONTENTS

Dismissals with notice and summary dismissals ...................................73 Capability dismissals ................................................................................78 Skill and aptitude .......................................................................................78 Ill health dismissals....................................................................................79 Qualification dismissals.............................................................................81 Conduct dismissals ....................................................................................82 Redundancy dismissals ............................................................................83

8

GRIEVANCES

94

Grievances: an introduction .....................................................................95 The standard ‘three step’ grievance procedure ....................................96 Definition of a grievance...........................................................................97 The ‘modified’ two step grievance procedure ........................................98 Overlapping disputes ..............................................................................101 Grievance procedures and their impact on employment tribunal applications ..............................................................................................102

9

APPEALS

104

The right of appeal ..................................................................................105

APPENDICES Appendix I

109 Example of disciplinary rules and procedure...............110

Appendix II Example of a grievance procedure ................................116 Appendix III Example of a complaints procedure dealing with harassment or bullying...........................................119


vi

Introduction This report looks at the all important requirements for businesses of all sizes to operate effective dismissal, disciplinary and grievance procedures which meet the requirements of the law. In particular, the report covers all of the requirements of the new ‘Disputes Resolution Procedures’ that came into effect 1st October 2004. These new rules changed the law on unfair dismissal substantially, by ensuring that no major decisions can be fairly taken when disciplining an employee, or dealing with any grievance that they may have without certain basic procedural steps having been followed. The new rules also impact on the admissibility of tribunal claims by reference to these same procedural steps. The volume of claims being brought before employment tribunals throughout the 1990s brought pressure on the government to take steps to reduce what was considered to be an unusually high figure. Statistics from the Employment Tribunals Service show that there was a 300% rise in employment tribunal applications over the ten years 1990 to 2000. There were just 43,243 applications in 1990. This had grown to 103,935 by 1999, peaking at over 130,408 in the 12 months to March 2001, and settling slightly to 112,227 in the year to 31st March 2002; 66% of all cases disposed of in this year were withdrawn, or settled before a full hearing, compared with 77% the previous year. One amazing statistic identified by the Employment Tribunals Task Force set up in October 2001, charged with reviewing the existing tribunal system, showed that 64% of the applications to employment tribunals were lodged without the employee and employer having first met to discuss the problem and attempting to resolve it between themselves. In 2001 the government estimated the average cost of defending a claim at around £2,000, and the cost of replacing a member of staff in excess of £3,000 – and these figures do not include management costs associated with defending a claim, and the possible damage to workplace relations that may have arisen. Fewer than 50% of claimants claim unfair dismissal, the bulk of the remainder is made up of claims of discrimination, improper pay deductions and other breach of contract claims. Employment Tribunals were originally intended to provide fast, non-legalistic, settlements of disputes between employers and employees. However, over the years, they have become increasingly legalistic, sometimes with little more than a thin veneer of informality. This was probably inevitable given that the rules


1

INTRODUCTION

stipulate that the chairman must always be an experienced lawyer whose training and background hardly encourages informality when dealing with disputes. In 2001 the government published a consultation document entitled Routes to resolution: improving dispute resolution in Britain, in which it expressed the view that the number of claims could be reduced through better handling of disputes in the workplace and a greater focus on conciliation as opposed to litigation. The government believed that employers with access to effective written procedures, were more likely to resolve disputes, or have applications to tribunal made against them withdrawn, than employers without such procedures. Small businesses were of particular concern (defined as those with fewer than 250 employees) for these account for a disproportionately high number of employment tribunal applications. Although such businesses employ only 18% of the workforce, they feature in 29% of the claims made. Following on from the initial consultation process, the government introduced a Bill into parliament in the 20001/2 session. This Bill eventually became the Employment Act 2002. This new Act places clear obligations on employers to operate and follow prescribed procedures, set out within the Act, when dealing with disciplinary and dismissal matters, and when handling employee grievances, and on employees to use these same procedures where appropriate. This report includes within it details of all of the steps employers must take to comply with each of the requirements of the Employment Act 2002, and covers all matters relating to disciplinary, dismissal and grievance procedures at the workplace. Where the new statutory dismissal and disciplinary rules apply, employers will be expected to follow defined steps whenever disciplinary or dismissal action is being contemplated, or when dealing with any grievances raised formally by their employees. The definition of ‘dismissal’ is much wider than hitherto, and includes redundancy, expiry of fixed term contracts and capability dismissals. The employee is expected to cooperate with the operation of these procedures, and is also required to follow certain defined steps themselves, before presenting a claim to an Employment Tribunal. A failure to follow, and comply with the procedures, when a dismissal takes place, will result in any subsequent dismissal being ruled automatically unfair. Similarly, where the new statutory grievance procedures apply, the employee will first be required to put any grievance to their employer, and the employer will be expected to invite the employee to a meeting to discuss the grievance, and provide for an appeal against any resultant decision. A failure by an employee to follow the prescribed procedure will, in most circumstance, bar them from bringing a tribunal claim relating to the grievance.


2

INTRODUCTION

Compensation for any successful tribunal claim, in relation to which one of the new statutory procedures applies, can be reduced, or increased by between 10 and 50%, to reflect any failure on the part of the employer, or employee, to comply with any aspect of the new statutory procedures. Through the operation of the new regulations, the government hope and expect that the number of applications to Employment Tribunal will fall substantially, leading to reduced pressure on the system and, as a result, an improvement in the efficiency and effectiveness of the service in general. Only time will tell if this laudable aim will be realized. Dennis Hunt 2005


3


Chapter 1 The Legislation A brief history of unfair dismissal legislation and employment tribunals....................................................................5 Summary of changes introduced by the Employment Act 2002......7 The standard three step disciplinary disputes procedure.................8 The modified disciplinary procedure ..................................................8 Default judgments .................................................................................9 Case management .................................................................................9 ACAS conciliation ...............................................................................10 Directions hearings .............................................................................10 Costs......................................................................................................11

Chapter 1 The Legislation

A brief history of unfair dismissal legislation and employment tribunals ‘Unfair dismissal’ is a statutory creation (unlike wrongful dismissal). It came into English law with the Industrial Relations Act 1971. Thus the right ‘not to be unfairly dismissed’ only exists if statutory conditions are satisfied. In 1978 unfair dismissal law was consolidated with the 1963 Contracts of Employment Act and the 1965 Redundancy Payments Act into the comprehensive Employment Protection (Consolidation) Act 1978 which was itself repealed and replaced with effect from 22nd August 1996 by the 1996 Consolidation Acts. Until 1971 the only modern UK statutes dealing with individual employment rights were the 1963 Contracts of Employment Act (which gave employees the right to written particulars of terms and conditions of employment) and the 1965 Redundancy Payments Act. Employment Tribunals (formerly called Industrial Tribunals) were established under Section 12 of the Industrial Training Act 1964 and the rules governing the constitution of such tribunals were set out in the regulations made under that Act. At the time of their creation Industrial Tribunals handled disputes under the Industrial Training Act. In 1965 their jurisdiction was extended to include disputes that arose from the Redundancy Payments Act 1965 and, following the Industrial Relations Act 1971, to unfair dismissal claims. Since then the jurisdiction of Employment Tribunals has been progressively extended to cover a wide range of employment related issues. Today Employment Tribunals have jurisdiction to hear claims under a large number of statutory provisions. These currently total over 80. In 1964 the UK government had accepted the recommendations of the International Labour organization on the subject of Termination of Employment. In 1965 it set up an employment/industrial relations commission under Lord Donovan to examine industrial relations policy generally. The Donovan Commis-


5

1 T H E L E G I S L AT I O N

sion reported in 1968 and amongst more general recommendations was one for a law of unfair dismissal. Barbara Castle, the Minister responsible in the Wilson government for employment matters, produced a paper (In place of strife) proposing legislation based on the Donovan report. The unions would not accept this and at the 1970 general election the Labour government was defeated. One of the first acts of the incoming Conservative government under Edward Heath was to pass the Industrial Relations Act 1971. This was mainly concerned with general industrial relations matters, derived from the 1968 Conservative Party document, Fair deal at work, but also introduced unfair dismissal along the lines recommended by the Donovan Commission. The unions would not accept the Industrial Relations Act 1971, however, they were generally in favour of the unfair dismissal sections of the Act. The matter came to a head with the 1974 miners’ strike when Edward Heath called a general election and lost. The new (1974) Labour government repealed the Industrial Relations Act (IRA) in its entirety by introducing the Trade Union and Labour Relations Act 1974. However, they re-enacted the unfair dismissal elements of the IRA 1971, with a few minor amendments. In 1978 unfair dismissal law was consolidated with the 1963 Contracts of Employment Act and the 1965 Redundancy Payments Act into the comprehensive Employment Protection (Consolidation) Act 1978 which was itself repealed and replaced by the 1996 Consolidation Act. The Labour government fell in 1979 after the ‘winter of discontent’ in which industrial action spilled over from the workplace and became too violent for the public to accept. The next (Conservative) government, under Mrs Thatcher, made many changes to labour and industrial relations law generally but left the law of unfair dismissal pretty well alone, to be developed by the tribunals and the courts. The Employment Act 2002 was introduced by the Labour government to bring statutory dispute resolution procedures into being that must be followed by both employer and employee alike, in order to reduce the high volume of cases coming before the Employment Tribunals


6


Summary of changes introduced by the Employment Act 2002 Employment Tribunals commence with the submission of an Originating Application – the ET1. In this document the claimant is required to state precisely what it is that they are claiming. The Employment Act 2002 radically increased the amount of information sought from the ET1. The form increased considerably in size to eight pages and 11 sections. It is now a formidable document indeed. It is accompanied by a five page closely worded guidance sheet which includes the recommendation that the claimant seek advice on completing the form. The intention behind this change is to ensure that sufficient information is available to the Employment Tribunal’s administration staff, to enable them to check that both the claimant and respondent have met the new requirements placed on them by the new Disputes Regulations Procedures that came into force on 1st October 2004. The Employment Act 2002 contained provisions preventing certain categories of complaint from being presented to a tribunal until they have been dealt with by the use of the employer’s Grievance Procedure. Where this has not happened, the case can be remitted back to the employee or ex-employee to enable the steps of the Statutory Grievance Procedure to be followed with at least 28 days elapsing thereafter. The time deadlines which surround any claim to the ET will be extended to allow these steps to be followed. ‘Fair’ includes the fact that a Disputes Procedure was followed that met the specific ‘Standard’ (three-step) or ‘Modified’ requirements of the Disputes Resolution Regulations. Where the requisite Disputes Procedure has not been followed, or worse, no Disputes Procedure exists, or is inadequate, the respondent risks automatically losing the case with the award of compensation being made against them being increased by between 10% and 50%.


7


The standard three step disciplinary disputes procedure The standard three step procedure referred to above requires the following: 1.

The employer sets down in writing the nature of the employee’s conduct, capability or other circumstances that may result in dismissal, or other disciplinary action, and sends a copy of this statement to the employee. The employer must inform the employee of the basis for his/her complaint.

2.

The employer must invite the employee to a hearing at a reasonable time and place where the issue can be discussed. The employee must take all reasonable steps to attend. After the meeting, the employer must inform the employee about any decision, and offer the employee the right of appeal.

3.

If the employee wishes to appeal, he/she must inform the employer. The employer must invite the employee to attend a further hearing to appeal against the employer’s decision, and the final decision must be communicated to the employee. Where possible a more senior manager should attend the appeal hearing.

Note: Employees are entitled to be accompanied at any formal stage of the procedure by a companion or trade union representative of their choice.

The modified disciplinary procedure The modified procedure requires the employer to do the following: 1.

Set down in writing the nature of the alleged misconduct that has led to the dismissal, the evidence for this decision, and the right to appeal against the decision, and send a copy of this to the employee.

2.

If the employee wishes to appeal, he/she must inform the employer. The employer must invite the employee to attend a hearing to appeal against the employer’s decision, and the final decision must be communicated to the employee. The employee may be accompanied at any appeal hearing by a representative or trade union official of their choice.


8


The modified procedure may be used only when the following conditions apply: •

Where the employer dismissed the employee without notice on the basis of his or her conduct.

•

The dismissal took place at the time the employer became aware of the gross misconduct (or immediately thereafter).

•

The employer was entitled to dismiss for gross misconduct without notice or payment in lieu of notice.

•

It was reasonable for the employer to dismiss without investigating the circumstances.

Default judgments The revised Employment Tribunal Constitution and Rules of Procedure 2004 introduced a new system of default judgments under which a tribunal chairman may, in certain circumstances, determine a case without a hearing if he or she considers it appropriate to do so. Such a judgment may decide liability alone, or liability and remedy. As a result of this change a chairman may issue a default judgement where a respondent has failed to submit a response within the prescribed time limit, or the respondent has submitted a response which failed to meet the pre-acceptance conditions.

Case management The powers of case management given to chairmen under the new rules of procedure are considerable. These powers are an integral part of the intention to speed up proceedings wherever possible. Chairmen now have the power to hold ‘case management discussions.’ Such discussions are interim hearings intended to deal with matters of procedure and management of the proceedings. They can be held by a chairman on his or her own, with the claimant and the respondent invited to take part. They may be held over the telephone or in person. If either party fails to carry out or comply with any order that results from any such discussion, their claim or response may be struck out and they can become liable to pay some, or all of the other party’s costs.


9


The new rules provide that notwithstanding the ‘preliminary or interim’ nature of a PHR, a case may be struck out at this stage where in the chairman’s view a claim or response is scandalous, vexatious, or has no real prospect of success; or where the conduct of the case has been scandalous, unreasonable or vexatious.

ACAS conciliation The Employment Tribunals (Constitution and Rules of Procedure) Regulations 2004 which came into force of 1st October 2004 radically changed the rules governing the period of time during which ACAS managed conciliation, can take place. Previously ACAS conciliation was open-ended in time. The new rules introduced fixed defined periods for conciliation, during these periods of conciliation, no hearing date will be set, or notified to the parties. Once these periods have elapsed ACAS will not become involved further, as their ‘duty’ to conciliate will have been fulfilled. They will still have the ‘power’ to conciliate, but are expected to exercise this power with considerable restraint. Short conciliation periods of seven weeks, starting with the date the claim is sent to the respondents, will apply to breach of contracts claims and other claims brought under the Employment Rights Act 1996 – including unlawful deductions from wages, right to guarantee payments, right to time off for public duties and a failure to pay any due redundancy pay. This, together with a variety of claims brought under the Trades Union and Labour Relations (Consolidation) Act 1992, and claims under the Transfer of Undertakings (Protection of Employment) Regulations (TUPE), regarding a failure to pay compensation, following a failure to consult as required by the TUPE Regulations. A ‘standard conciliation period’ of 13 weeks will apply to all other claims.

Directions hearings As a result of the Employment Act 2002, directions hearings will become an increasing feature of the Employment Tribunal case management process. A tribunal may at any time, on the application of a party, or of its own motion, give such directions on any matter arising in connection with the proceedings as it believes appropriate. Directions may include any requirement relating to evidence, including the provision and exchange of witness statements, the provision of further particulars,


10


and the provision of written answers to questions put to either party by the tribunal. The tribunal may also, on the application of a party or on its own motion, require the attendance of any person, either to give evidence, or to produce documents, or both and may determine both the time and place at which the person is required to attend. A failure to comply without reasonable excuse shall lead on summary conviction to a fine. The tribunal also has the power to make an order in respect of costs, and to strike out the whole or part of the originating application, or the notice of appearance and, where appropriate, direct that a respondent be debarred from defending the case altogether.

Costs One major change introduced by the Employment Protection Act 2002 relates to the power of tribunals to make costs orders. This increased power provides additional ‘bite’ to a tribunal’s powers, and is intended to force the parties to ensure that they comply with all tribunal’s orders, and do all in their power to ensure that delays and adjournments are kept to a minimum, thus eliminating unnecessary delays to tribunal proceedings. The new powers enable tribunals to make costs awards of up to £10,000 where, in the tribunal’s opinion, a party has behaved vexatiously, abusively, disruptively or otherwise unreasonably in bringing or conducting the proceedings, or the tribunal find that the bringing or conducting of the proceedings by a party has been misconceived. In such circumstances the tribunal may make an award of costs against the party. Such an award can include the costs of preparation time in preparing for the hearing, for non legally represented parties, and ‘wasted’ costs. ‘Wasted’ costs are costs incurred by a party, such as travel or overnight stay expenses, that have been incurred by them – but which may be wasted – as a result of the conduct of the other party. Preparation time orders may be made in favour of unrepresented litigants. Preparation time does not include any time spent at hearings. However, it does include any preparation work done which is directly related to the proceedings, and also any time spent by that party’s advisers or employees directly relating to the conduct of the proceedings. Whilst the maximum costs that can be awarded by a tribunal is £10,000, this need not necessarily be the maximum that results. The tribunal rules set out three ways in which a costs order against a party can be made. Firstly, the tribunal


11


may specify the sums payable, where that sum is no greater than £10,000. Secondly, the parties may agree the sum payable between themselves. Thirdly, the tribunal may order the costs to be determined by way of a detailed assessment in a County Court. The rules make it clear that if the amount is set using the two latter methods, the amount may well exceed the £10,000 maximum.


12


Chapter 2 Contracts of employment Contracts of employment: an introduction.......................................14 The tests of employment ....................................................................15 Forming the contract ..........................................................................17 Formalities............................................................................................19 Contracts: the four elements ..............................................................19 The Employment Rights Act S1 – ’written statement of particulars’ ......................................................22 Changing the terms of a contract of employment ..........................23 Summary ..............................................................................................24

Chapter 2 Contracts of employment

Contracts of employment: an introduction Any report on disciplinary rules, procedures and grievance procedures must include a section dealing with the contract of employment for this is the ‘cornerstone’ of all employment relationships. All flows from it and it is to the contract we must return whenever we are dealing with breaches of contract, or any other employer/employee dispute, whether they be caused by the employer or the employee. The ERA 1998 Section (s)230 states that an employee is ’…an individual who has entered into, or works under, a contract of employment…’ So what is a contract of employment? Put at its simplest, it is an agreement between two parties that has value; where an intention to be bound in a legal relationship has been expressed verbally, or is evidenced by the actions of the parties. Often employers and employees alike will state that they have either not issued, or not received a contract of employment. What they really means is that they have not issued the Statement of Terms and Particulars required under Section 1 of the Employment Act 1996. Anyone working for payment is operating under either a ‘contract of employment’, or a ‘contract to provide services’. The former being a traditional contract of employment, the latter being a self-employed contract. The fact that a worker chooses, or is required to pay for their own income tax and National Insurance is not, contrary to popular belief, a defining measure of the legal nature of the employment. The rules that determine employment differ markedly between the Inland Revenue and the civil courts. An employer can be a: •

Sole trader

•

Partnership

•

Company


14

2 CONTRACTS OF EMPLOYMENT

•

Unincorporated association

•

Private individual.

Employers can employ: •

Permanent staff

•

Part-time staff

•

Casual employees

•

Highly skilled short-term employees

•

Fixed-term employees – whose employment ends on a specific date or in response to the completion of a specific task.

The tests of employment The traditional tests used to determine if an employed person is an employee or a self-employed trader are: •

The control test

•

The organization test

•

The ordinary person test

•

The indicia test

•

The economic reality or multiple test

•

The self description test.

Control test This is the oldest test and is drawn from master/servant rules ‘from the servant is due obedience and respect – from the master protection and good treatment’ Linland v Stephens 1801. The fundamental question to be asked here is ‘Does the employer direct and control?’ If the answer is ‘Yes’ then the person is an employee.

Organization test Is the person part and parcel of the organization? Stevenson Jordan and Harrison v McDonald and Evans 1952.


15


Ordinary person test Is there a contract of service with meaning that an ordinary person would give? Collins v Herts CC

Indicia test 1.

Masters’ (employers’) powers of selection

2.

Presence of wage payment

3.

Masters’ (employers’) right to control

4.

Right of suspension or dismissal

Short v Henderson 1946

Economic reality or multiple test This is a three part test – a contract of employment exists if there is the following: 1.

An agreement to provide skill and work in return for a wage.

2.

Express or implied submission to control.

3.

Nothing significant inconsistent with employment.

This is a pragmatic approach which takes all factors into account, e.g. degree of control; obligation to give work and obligation to accept; provision of tools and equipment; responsibility for tax and NHI payments; freedom to do other work; holiday entitlement; entitlement to notice; expenses; financial risk; duration of engagement etc.

Self description test This test may be as simple as asking ‘….is this person performing services in business on his own account..?’ Market Investigations v Minister of Social Services 1969.

Other forms of work relationship •

Labour only subcontractors – the lump

•

Labourers in construction industry – self employed

•

Casual employment – usual test is mutuality of obligations

•

Agency staff – usually seen as self employed


16


•

Outworkers – historically seen as independent

•

Directors – may be employed or self employed

•

Part-time employees – now covered by all employment legislation

Forming the contract Contracts of employment define the legal relationship between the parties. The contract consists of everything that is agreed between them. It is almost impossible to include every aspect of the job in writing, although some ‘Service Agreements’ issued to senior staff and directors often try! Because of this the actual content of all contracts will be fluid. Jobs are never static; they are constantly changing with the passage of time as businesses and people grow, change and develop. Documentation defining the job, and hence the contract, need to be reviewed from time to time to reflect any major changes that have occurred. The contract can be oral, written, or deduced by conduct, but to meet the requirements of employment law they require evidence by way of a Statement of Written Terms and Particulars of Employment – Employment Rights Act 1996 Section 1. However, the law does require written contracts for: •

Apprentices

•

Merchant seamen/women

•

Some fixed-term contracts.

The only legal requirement is that the ‘S1 Statement’ be in writing. However, the ‘S1 Statement’ is not the contract, simply evidence of its main terms. All contracts of employment consist of three elements: •

Pre-contract terms (subject to);

•

Contract terms (specific and implied) ;

•

Post-contract terms (restrictive covenants).


17


Pre-contract terms These terms set out the requirements that the candidate for a position must meet if they are to proceed to the full contract. Such requirements as the provision of references, passing a medical examination, sight of qualifications, driving licence etc, are all common requirements set out as pre acceptance clauses in offer letters. The offer letter often uses the words ‘subject to…………………’ these requirements being met, before the offer of employment moves to a full contract.

Contract terms The actual contract terms will consist of four main elements: 1.

The express terms set out in writing – the written particulars and any other matter that the employer feels is relevant to the job, and important to be set out in the main terms of contract.

2.

The implied terms (see below) comprise those terms that are obvious and would be present in any intent by any parties intending to be bound in a legal relationship. Such matters as the expectation of loyalty, integrity, faithfulness etc.

3.

The statutory terms – terms incorporated by statute – i.e. the rights given to employment by Parliament or by EU law known commonly as ‘statutory terms’. These terms are present in all contracts of employment and as such do not require setting out in writing.

4.

One final element can also be included called ‘Custom and Practice terms. More on this later.

Post-contract terms These terms are known as ‘restrictive covenants’ – are those which bind the employee after the employment has ended. These are often very specific both in time – the period in which they will continue to apply after employment has ended – and in the protection afforded to the employer. To be validated by the courts any restrictive covenant needs to be ‘reasonable’ and only seek to protect that which the employer owns, such as internal business information, client lists and trade secrets of which the employee would have had no knowledge without working for the employer. Employers must exercise great care when drafting restrictive covenants to ensure that they do not become ‘restraints of trade’ and therefore unenforceable in law. A restraint of trade is defined as a requirement drawn so tightly that its operation prevents the ex-employee from earning their living, by selling and exercising their skills and abilities.


18


Formalities For any contract of employment to come in being there must be an offer and unconditional acceptance of work. 1.

The offer may be oral, or in writing or made through advertisement.

2.

Offers can be conditional, (pre-contract) i.e. subject to satisfactory references, medical, sight of qualifications, certificates etc.

3.

Acceptance can be in any form e.g. orally, handshake or signature.

4.

The parties must intend to be bound, i.e. to create a legal relationship between themselves.

5.

There must be consideration – wages/salary – the promise of work for wages.

Contracts: the four elements As set out previously, contracts comprise four elements: firstly ‘express’ terms, secondly ‘implied’ terms, thirdly ‘statutory’ terms and finally, terms that arise through the operation of what is called ‘custom and practice’. The parties may agree any terms that are legal.

Express terms These can include: •

Specific terms agreed by parties;

•

Things referred to but contained in other documents;

•

Everything required to be in the ERA S1 statement;

•

These must be consistent with employment.

The written statement must accurately represent the agreement entered into between the parties. Express terms ensure that this happens. It is advisable to keep express terms broad to ensure easy interpretation. The express terms should refer to Disciplinary Rules and Procedures – although these can be a mix of contractual and non-contractual. This distinction is important as only non-contractual items (policies) can be changed unilaterally, as they are developed by the board of directors or senior management. All other


19


changes to the contract terms will require consultation and prior agreement before implementation. It is important that the terms of the contract accurately reflect the needs of the business. It is recommended that before drawing up a contract, those matters which are fundamental to the operation of the business be listed. What are the key aspects of the job and the business? •

In construction it could be safety and the security of materials and property; high standards of workmanship and observance to detail.

•

In haulage it could be observance of traffic rules, laws and the maintenance and security of vehicles and goods.

•

In catering it could be hygiene, cleanliness and customer service.

Well written contract terms reflect the nature of the business. Like buying an ‘off the peg’ suit it can be a serious and expensive mistake to simply copy the terms and conditions of another business and apply them to your own business, only to find out later at an Employment Tribunal that they do not fit.

Implied terms Implied terms are prevalent through Employment and Contract Law and apply to all contracts irrespective of whether they are included as express terms or not. These rights do not require setting out in writing within the contract as they apply to all employed persons by force of ‘case law’ i.e. ‘law’ developed by the workings of the courts and the decisions they reach. Implied terms are those that are ‘obvious’ – such as: The employers’ duties to their employees: •

To pay wages (although details are required to be included in the S1 Statement of Particulars).

•

To provide work.

•

To take reasonable care of employees.

•

To provide safe systems of work, plant, equipment etc.

•

To not cause psychiatric harm.

•

To indemnify for all reasonable expenses.

•

To give mutual trust and respect.

•

To protect from harassment of all forms.


20


•

To protect confidentiality.

•

To deal properly with grievances (now given greater significance by EA2002).

The employees’ duties to the employer include: •

The need to obey all lawful and reasonable instructions.

•

To exercise care and skill whilst carrying out their duties.

•

To protect their employers’ property.

•

To adapt to necessary changes (after consultation and communication).

•

To give faithful service to their employer.

•

To not harm their employers’ business.

•

To not compete with their employer.

•

To disclose misdeeds of colleagues.

•

To not misuse, or disclose to third parties (not entitled to know) confidential information about their employers’ business.

•

Not to make a secret profit from their employment.

Statutory terms These are terms imposed by legislation – the ‘third party’ to the contract. They are the minimum terms that must be applied to all employees irrespective of whether they are stated in the written particulars or not. For example, the entitlement to 20 days’ holiday a year for full-time employees, or pro- rated for part-time employees. Employers are free to offer terms in excess of the minimum, but must apply the minimum to all employees irrespective of any other specific terms agreed between them. The only bodies that can interfere with the terms of a contract freely entered into by an employer and an employee are: 1.

The government – through legislation; over the last 30 years many rights have been included into the contractual relationship of employer and employee through legislation.

2.

The European Union – again through legislation and EC judgments – the Working Time Directive governing the number hours employees can work, for example.

3.

The courts – that can interpret the intentions of parties.


21


Custom and practice Custom and Practice, as its name implies, develops over time, regardless of the express terms written within the contract. For example, an employer can expressly agree that an employee will commence work at 8.30am. However, an employee can over time regularly arrive for work at 9.00am. If the employer does nothing, in effect he/she condones the later start time, over time 9.00am will become the ‘custom and practice’ contractual start time. A change to the contract will have occurred due to the employer’s failure to insist on the express term being observed. Custom and practice covers all the peripheral aspects of the job which can change over time: working arrangements not committed to paper; understandings entered into within work groups and between supervised and supervisors etc. The minutiae of working life that are never, in fact can never, be fully recorded or included in any documentation.

The Employment Rights Act S1 – ’written statement of particulars’ This must include: •

The names of both employer and employee.

•

Full postal address of employer and place of work.

•

Date of commencement of employment.

•

Date of commencement of continuous employment.

•

Scale of remuneration, method of calculating pay, pay period.

•

All terms concerning hours of work

•

Holiday entitlement, including public holidays and holiday pay.

•

Provision for sickness and sick pay.

•

Pension rights and schemes.

•

Periods of notice on both sides.

•

Period of employment, if not permanent.

•

Details of any collective agreements affecting conditions of employment.

•

Details of any disciplinary rules – (subject to statute).

•

Details of grievance procedure – (subject to statute).


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•

If no particulars apply under any heading then that fact should be stated.

•

The statement may refer the employee to other documents where the specific information is held.

•

The statement must be issued within eight weeks of employment commencing.

Note: The S1 statement is not the contract, merely evidence of its terms. If an employee brings a claim to an Employment Tribunal under Section 38, Schedule 5 of the Employment Act 2002, which sets out the tribunal’s powers of jurisdiction, the tribunal may consider the nature of the employee’s written statement. If there is no statement, or it is found to be incomplete, or inaccurate, and the employee’s claim is successful, the tribunal is required to award additional compensation to the employee of between two and four weeks pay. The legal requirements allow reference in the statement to documentation that is held in other places, such as employee handbooks, information manuals, and the like, provided these are readily and easily accessible to the employees to whom they apply.

Changing the terms of a contract of employment Contracts are not ‘set in stone’ when they are formed. They can be changed to reflect the changing nature of the business, or the employee’s circumstances. Consultation and agreement are essential, however, before any significant change is implemented. Neither side can unilaterally change the terms of a contract without the consent of the other party to the contract. To do so is to risk a successful breach of contract claim. As the contract is entered into by mutual agreement, then any change to the agreed terms must also be mutually agreed. Where agreement cannot be reached between the parties the employer has the right, as employees do, to end the contract if there is no alternative course of action open to them. They must, however, be able to demonstrate that they have first explored and exhausted all possible alternative courses of action before proceeding to go about ending the contract, in accordance with its terms, regarding notice entitlement, and the requirements of statute.


23


Any unilateral change to a fundamental term of the contract of employment, such as pay, hours, holidays, location etc, could lead to a successful claim for ‘Constructive Dismissal’. (See Chapter 7.)

Summary The contract of employment is the starting place when considering any aspect of employment. By its very nature it is the hub around which all other aspects of employment revolve. When any dispute arises the first place to look when seeking to resolve any issue that may have arisen is the terms of the contract of employment. Questions must be asked such as: •

What was agreed between the parties?

•

Has ‘custom and practice’ changed the agreement?

•

What has happened to disturb the agreement?

•

Is this a breach of the terms?

•

If so, is it a minor or a major breach?

•

Can it be rectified through discussion and agreement?

•

Will a warning, either verbal or written, be sufficient to resolve the matter?

•

Is the action so serious that it has brought the agreement to an end?

•

Have the requirements of the Disputes Resolution Regulations been followed in full?

•

Could any claim to Employment Tribunal be successfully defended?

The rules, disciplinary and grievance procedures are an integral part of the contract of employment and the next chapter explains why.


24


Chapter 3 Disciplinary rules Disciplinary rules: an introduction ....................................................26 Drafting the rules.................................................................................27 Health and safety rules........................................................................29 Communicating the disciplinary rules ..............................................30

Chapter 3 Disciplinary rules

Disciplinary rules: an introduction The ACAS Disciplinary and Grievance Procedures Code of Practice, the latest issue of which came into effect on 1st October 2004, was brought in to support the requirements of the Employment Act 2002, in particular the Disputes Resolution Regulations, which also came into force on 1st October 2004. The Code states that its intention is to: Provide practical guidance to employers, workers and their representatives on: •

The statutory requirements relating to disciplinary and grievance issues;

•

What constitutes reasonable behaviour when dealing with disciplinary and grievance procedures; and

•

A worker’s right to bring a companion to grievance and disciplinary hearings.

A failure to follow any part of the Code does not, in itself, make a person or organization liable to proceedings. However, Employment Tribunals will take the code into account when considering relevant cases. Further, a failure to follow the statutory disciplinary and grievance procedures where they apply may have a number of legal implications which are described in the Code. As such, the Code is well worth obtaining, reading and retaining for reference purposes. In the main it is written in plain English and is easy to follow. Disciplinary rules become an integral part of employees’ terms of contract when they are explicitly referred to in the express terms of the contract. Properly written they tell employees what behaviour their employer expects of them, as such, they form part of the contract of employment. It is a legislative requirement that information on the rules and disciplinary procedures that apply to employees are set out, or referred to, in the S1 ERA Statement of Terms of Particulars. When drawing up rules the aim should be to specify those ‘that are necessary for ensuring a safe and efficient workplace and for maintaining good employment relations’. (ACAS guide to discipline and dismissal).


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3 D I S C I P L I N A RY R U L E S

In essence the term ‘discipline’ is a misnomer in commerce and industry, for the purpose of all rules should be to set down for employees what is acceptable and unacceptable behaviour; they are guidelines for employees in the standards expected of them when fulfilling their contractual obligations to their employer, not trip wires designed to catch them out. Their aim should always be to provide information to employees on the standards that they must maintain if they are to effectively perform their side of the contract.

Drafting the rules To be effective rules must be: •

Clear and unambiguous;

•

Written in ‘plain English;’

•

Understandable by all employees irrespective of their native tongue, or level of educational attainment;

•

Accepted as fair and reasonable by those to whom they apply; and

•

In relation to the nature of work and the job.

Rules should not only set out the boundaries of behaviour and performance required of employees, but they should define the category within which each rule falls, indicating the severity with which any breach of them will be treated. Actions which are unacceptable, but not fundamental breaches of contract should be indicated. Similarly, actions which would constitute a repudiation of contract need to be clearly set out. What could be seen as gross misconduct in certain organizations might merely be misconduct in others. Organizations should aim for clarity and simplicity when communicating the expected standards of behaviour and performance to their employees. This can make the difference between winning and losing at an employment tribunal hearing. It is unlikely that any set of rules will cover all possible disciplinary issues; each organization will have its own particular needs. But rules usually cover: •

Unsatisfactory work performance

•

Harassment, victimisation or bullying

•

Misuse of company facilities (such as e-mail, internet, vehicles and other equipment etc)


27


•

Poor timekeeping

•

Unauthorised absence

•

Failure to follow instructions

•

Failure to observe safety rules

•

Misconduct – which can cover a wide definition

•

Gross Misconduct

•

A ‘catch-all clause’ stating that any given list is not exhaustive

•

Health and safety matters.

Rules should be specific, clear and set out in writing. They also need to be readily available to all employees. Management should do all that they can to ensure that every employee knows and understands the rules, including those employees where English is not their first language, or whose reading ability is low. The aim when drafting rules should be to write them at a ‘reading age’ level of 12. This is the reading age at which the popular tabloid newspapers are written. Acts which constitute Gross Misconduct need to be presented separately from other forms of breach of contract. Examples of Gross Misconduct might include: •

Fighting or drunkenness

•

Illegal drug taking and alcohol use during working hours – (or outside if driving or flying is involved)

•

Theft or fraud

•

Physical violence or extreme bullying

•

Deliberate and serious damage to property

•

Serious insubordination

•

Unlawful discrimination or harassment

•

Bringing the organization into serious disrepute

•

Serious negligence

•

A serious breach of health and safety rules

•

A fundamental breach of trust and confidence.

When drafting rules, employers should start by asking what is important to their business. The standard terms covered by the above list may not be adequate or appropriate to meet the needs of the business. Employers must ensure that


28


their rules are relevant to their business, and concentrate the minds of their employees onto those things which are important to the success of their business, or the attainment of the businesses’ defined objectives. Businesses do not operate in a vacuum. They have specific purposes and are directed to meet specific needs and market places. The rules, as guidelines for employees, should define and emphasise these needs and objectives. It is all very well drafting mission statements, but unless the rules, employee guidance systems and training programmes are clearly directed to achieving the mission of the business, then the mission statement risks being just words without a link to the way in which the business works on a day-to-day basis. The rules will give a very good guide to the business ethos and philosophy.

Health and safety rules One important area in which rules are essential is health and safety at work. The courts take health and safety issues very seriously. Health and safety rules require drawing up entirely separately from the broad and general rules which govern capability and conduct etc., (although they are clearly linked to conduct). They need developing in conjunction with health and safety specialists and need to be directly related to the nature of the business. The law on health and safety, that was first enshrined in the Health and Safety at Work Act etc. 1974, and which has been added to and amended significantly since, requires employers to carry out risk assessments on all activities that take place within their businesses. These risk assessment, from which safe working practices can be developed, will determine exactly what requires to be included within the safety rules of the business. Properly drawn up they will make the task of defining general safety rules, which are merely rules for guidance, from those whose observance is mandatory, through to those rules which, if breached, will fall into the category of Gross Misconduct. An employer who fails to have clear defined rules covering every aspect of health and safety drawn up within their business, is likely to be found to have acted negligently in the event of a serious accident or incident. A breach of the health and safety laws is a criminal act which can lead to: •

The issue of Improvement Notices to correct defective plant equipment and processes;

•

Prohibition Notices which stop all work in the area concerned until certain specific requirements have been met;


29


•

Fines imposed on both individual managers and directors; and

•

Imprisonment for directors who have failed in their duties and whose failure has led to serious incidents or accidents arising.

As I write, five executives – three from Railtrack, which later became Network Rail and two from the engineering company Balfour Beatty – are on trial for the manslaughter of four passengers who died in the 150mph crash on October 17, 2000 (The Hatfield Rail Disaster). These executives also face further charges brought under the Health and Safety at Work Act. Health and safety rules need linking to the general rules so that a failure to observe them will lead automatically to their enforcement through the operation of the businesses’ normal disciplinary procedure. All too often in my experience, this essential linking is missing. I have found many instances where the health and safety rules appear to have been developed in a vacuum and not linked across to become an integral part of the organization’s normal standard operating rules and procedures.

Communicating the disciplinary rules The style and presentation of rules does not need to be intimidating and boring. Many organizations go to great lengths to bring the same level of presentation skill into producing and presenting their rules as they do to marketing their products and services. They include colour and cartoon characters to highlight aspects of the documents and draw employees attention to what is important in them. It is a mistake to confuse the seriousness of the purpose for which rules are intended, with the style of presentation. Attractive interesting documents get read and are retained longer in the awareness of staff than boring, dull repetitive prose. It is essential that all employees understand the standards expected of them as set out in their employers’ disciplinary rules. Their first detailed knowledge of them should result from a clear explanation being given to them during their induction programme. This explanation should be tailored to the recipient. Where English is not the new employee’s first language then efforts should be made to obtain a translation into the new employees’ native language. The ‘reading age’ of the employee should also be taken into account. Employees with a low reading age are often reluctant to admit to this fact, as such employers should make efforts to ensure that employees actually understand what is being read, or presented to them.


30


During the induction programme for new employees every opportunity should be taken to ensure that the new employee thoroughly understands not only what is in the rules, but the thinking and reasoning behind them. Particular attention should be given to safety rules, with demonstrations being given where safety clothing and other safety equipment is to be worn or used. Employees must appreciate that the use of such safety clothing or equipment is not an option, but an essential feature of their work within the business. At the conclusion of the induction programme, employees should be required to sign to state that they have read, (or have had read to them) the rules that apply to them, and more importantly that they understand the rules and the reasoning behind them. Copies of the rules should be given to each employee, or be readily accessible to them in a central location. The main danger with issuing sets of rules and related procedures to employees is the need to keep such documentation up to date with the passage of time. This task is made much easier if the documentation is held at a central location that is easily accessible to employees with the facility to photocopy sections of the rules and other procedure as and when they are needed.


31


Chapter 4 Disciplinary procedures Disciplinary procedures and the law.................................................33 Modified disciplinary procedures and gross misconduct...............35 The ACAS guide to disciplinary procedures....................................37 Special situations ................................................................................39 Summary .............................................................................................40

Chapter 4 Disciplinary procedures

Disciplinary procedures and the law The law on unfair dismissal requires employers to act ‘reasonably’ when dealing with disciplinary issues. What is classed as ‘reasonable’ behaviour will depend on the circumstances of each case, and is ultimately a matter for the Employment Tribunals to decide. Case law over the years has defined the boundaries of ‘reasonable’ in most types of dismissal, however the role reversal approach can usually help the manager determine what would be considered as reasonable; i.e. “How would I feel is this were happening to me?” “If I were being treated this way would I believe that I was being treated fairly?” There is no doubt, however, that following the advent of the Dispute Resolution Regulations from the beginning of October 2004, the operation of a DDP will be an essential requirement if the action involved is to pass the ‘reasonableness’ test applied at tribunal. Research undertaken by the DTI in 1998 showed that over 60% of Employment Tribunal claims were lodged before any discussion had taken place between the employer and the employee. The government, concerned to see that litigation via an Employment Tribunal was not seen as the first option for resolving work place problems, decided to introduce statutory dismissal, disciplinary and grievance procedures (DDPs) and GPs (see Chapter 8) – which employers and employees alike would be required to follow. The consequence of an employer or an employee’s failure to comply with an applicable DDP can be serious. Where an employee with at least one year’s service has been dismissed, and where the employer has failed to comply with the applicable DDP, the employer will be liable to incur an automatically unfair dismissal decision. Further, where an applicable DDP has not been completed owing to the fault of either the employer, or the employee, the compensation awarded to the employee in the event of a successful Employment Tribunal claim can be adjusted upward or downward by between 10% and 50%. The Employment Act 2002 lays down the minimum requirements for Disciplinary Procedures which under the Dispute Resolution Regulations are incorporated in every employment contract with effect from 1st October 2004,


33

4 D I S C I P L I N A RY P R O C E D U R E S

irrespective of the size of the employing organization. The regulations lay down as a minimum a ‘three step’ disciplinary dismissal procedure (DDP), or a ‘two step’ modified procedure. The ‘three step procedure which applies to standard disciplinary action and any resultant dismissals is: 1.

Written notification to the employee of the alleged breach of contract.

2.

A meeting to discuss the alleged breach including any nominated representative of the employee.

3.

Opportunity for the employee to appeal against any decision to impose a disciplinary penalty.

This procedure also applies when an employer is contemplating action short of dismissal, such as a warning etc. and when suspending an employee without pay or on reduced pay. The new three step requirement must apply when fixed term contract dismissals happen (except when they are less than one year in length). The Dispute Resolution Regulations define ‘relevant disciplinary action’ to which the standard DDP applies, as ‘action short of dismissal, which the employer asserts to be based wholly or mainly on the employee’s conduct or capability, other than suspension on full pay or the issuing of warnings.’ Note: This definition excludes redundancy or action which could arguably fall under the heading of ‘Some Other Substantial Reason (SOSR)’ although this heading must by definition include issues which common sense would advise that the DDP applies to. ‘Action short of dismissal’ is defined as any ‘act or omission’, action taken, or a failure to take action. Other than this, the regulations give little guidance as to what constitutes ‘action short of dismissal’. So the best steps a manager or employer can take are to ensure that when dealing with any aspect of an employee’s performance, or conduct, to ensure that the three step DDP is followed. When in doubt, apply the DDP and thus ensure that if an Employment Tribunal, at a later stage decides that the act or omission complained of was ‘action short of dismissal’, then the relevant DDP steps will have been followed and recorded as such. Better safe than sorry. Although employers will be obliged to follow the standard DDP when handling both conduct and capability issues, they should not confuse the two. An employee called to a meeting to discuss a performance or capability issue should not be made to feel that they are undergoing a ‘disciplinary’ process. Rather it should be emphasised that the purpose of the meeting is to discuss whether any action on their part, or the part of their employer could lead to a resolution of the ‘capability’ issue under discussion. It is good industrial relations practice to distinguish between capability and conduct.


34


Employers must note that the DDPs are intended to provide minimum standards for all employers. While it is clear that a failure to follow the minimum procedure will lead to automatic sanctions taking place against the employer, it does not follow that an adherence to them will lead automatically to a finding of a ‘fair’ dismissal. As always, the facts of a case backed up by relevant case law will determine if the dismissal was reasonable i.e. fair, or not. However, if the new DDP is followed it will considerably reduce the likelihood that an employer will suffer an unfair dismissal on the grounds of a procedural fault. It should be borne in mind that in any unfair dismissal claim, the tribunal will always consider whether there were any steps the employer could ‘reasonably’ have taken, in addition to the minimum requirements, when carrying out the dismissal. If the tribunal decides that there were additional steps that a reasonable employer would have taken when dealing with the type of issue before them, then the door is still open to them to make a finding of unfair dismissal. It is worth bearing in mind at this point that the majority of unfair dismissal decisions found against employing organizations over the years have been on the grounds of ‘procedural fault’, rather than the fact that the employer did not have good grounds for dismissing the employee concerned.

Modified disciplinary procedures and gross misconduct The Regulations recognise the fact that in certain instances of dismissal the full Three Step procedure may not be appropriate, and so introduced a short Two Step modified procedure that could apply in certain circumstances. The Regulations set four elements that must be present before the modified Two Step procedure can be used properly, instead of the standard Three Step DDP: •

Where the employer dismisses the employee by reason of his or her conduct;

•

The dismissal occurred at the time that the employer became aware of the conduct, or immediately thereafter;

•

The employer was entitled, in the circumstances, to dismiss the employee by reason of his or her conduct without notice or payment in lieu of notice; and

•

It was reasonable for the employer in the circumstances to dismiss the employee before enquiring into the circumstances in which the conduct took place.


35


The effect of this is that the modified DDP will apply in only a very small number of gross misconduct dismissals. In the small number of instances where the modified DDP might apply, the Regulations state that the employer must: a)

Set out in writing: •

The employee’s alleged misconduct which has led to the dismissal;

•

What the basis was for thinking at the time of the dismissal that the employee was guilty of the alleged misconduct; and

• b)

The employee’s right to appeal against the dismissal.

Send the statement, or a copy of it, to the employee.

For the modified Two Step procedure to apply, the employee will have to have been dismissed for gross misconduct before the procedure can be initiated. The first step in the procedure will consist of an explanation by the employer of why the dismissal took place. The employer must set out in writing the basis for thinking that the employee was guilty of the misconduct in question – bearing in mind that the employer may not, in these circumstances, have carried out a full investigation into the facts surrounding the matter before reaching the decision to dismiss. The second step deals with the appeal process and the Regulations state that: •

If the employee does wish to appeal, he or she must inform the employer;

•

If the employee informs the employer of his or her wish to appeal, the employer must invite the employee to attend a meeting;

•

After the appeal meeting the employer must inform the employee of the final decision.

It is a well established principle in common law that the employer is entitled to terminate a contract of employment summarily by reason of the employee’s dishonesty, negligence or disobedience. The degree of misconduct, however, must amount to a repudiatory breach of the contract i.e. must be so serious as to ‘destroy’ the contract. When should employers use the modified Two Step procedure? It is rare for an Employment Tribunal to find a misconduct dismissal fair where there has not been an investigation into the employee’s alleged behaviour that did not first


36


include the opportunity for the employee concerned to put his or her side of the matter, and to challenge all evidence or any witnesses against them. The introduction of the Two Step procedure into the Regulations has the potential to confuse employers. Best practice would advise that no dismissal takes place without the employee first being given every opportunity to present their side of the case. If the issue is so serious as to indicate the appropriateness of instant dismissal, then the employer would be well advised to first instantly suspend the employee on full pay and benefits (unless the contract of employment allows otherwise). To in effect make time to consider the matter in a calm and logical manner, and not be pressurised into making hasty and possibly ill informed decisions that could prove expensive at a later date. To do otherwise is to risk a finding of unfair dismissal. The opportunity to appeal against dismissal allowed for in the modified procedure would allow the employee the chance to put their side of the matter – but only if the employee exercised the right of appeal and did not proceed directly to tribunal.

The ACAS guide to disciplinary procedures This guide sets out the core principles that must be observed when drawing up a disciplinary procedure. These are: •

Disciplinary procedures be used primarily to help and encourage employees to improve, rather than just as a way of imposing a punishment.

•

Employees be informed of any complaint against them and provided with an opportunity to state their case before any decision is reached.

•

Where appropriate, employees can be suspended from work to facilitate investigation, particularly in cases of alleged misconduct or gross misconduct. Where suspension is used employees should receive full contractual pay and benefits for any period of the suspension, unless the contract of employment allows otherwise.

•

No disciplinary action should be undertaken until the facts of a case have been established and it is clear that any disciplinary action contemplated is reasonable in the circumstances.

•

Employees being allowed to be accompanied at any disciplinary meetings.


37


•

Employees never being dismissed for a first disciplinary offence unless it is a case of gross misconduct.

•

Employees being provided with a written explanation for any disciplinary action that is to be taken against them with steps being taken to ensure that the employee is fully aware of what improvements are expected of them.

•

Employees being given an opportunity to appeal against any disciplinary action taken against them.

•

Issues of a disciplinary nature being dealt with as thoroughly and promptly as possible.

•

Employers making every effort to act consistently in all matters of discipline.

The code goes on to say that good disciplinary procedures should: •

Be in writing;

•

Say to whom they apply;

•

Be non-discriminatory;

•

Allow for matters to be dealt with without delay;

•

Allow for information to be kept confidential;

•

Tell employees what disciplinary action might be taken;

•

Define and say what levels of management have the authority to take disciplinary action;

•

Require employees to be informed of the complaints against them; and supporting evidence before any meetings take place;

•

Give employees every chance to have their say before management reaches any decision;

•

Provide employees with the right to be accompanied at all disciplinary and grievance hearings;

•

Provide that no employee is dismissed for a first breach of discipline except in cases of gross misconduct;

•

Require management to investigate fully before any disciplinary action is taken;

•

Ensure that employees are given an explanation for any sanction; and

•

Allow employees to appeal against any decision.


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When operating Disciplinary Procedures employers must: •

Establish the facts before taking any disciplinary action.

•

Deal with cases of minor misconduct informally.

•

Follow formal procedures for more serious cases, including informing the employee of the alleged misconduct or unsatisfactory performance.

•

Invite the employee to a meeting and inform them of their right to be accompanied.

•

Where performance is unsatisfactory, explain to the employee the improvement required, the support that will be given to assist them to achieve this, and when and how their performance will be reviewed.

•

When giving a warning, tell the employee why and how they need to change, the consequences of failing to improve, and that they have a right of appeal.

•

If dismissing an employee tell them why, when their contract will end, and that they can appeal.

•

Before dismissing or taking other disciplinary action other than issuing a warning, always follow the statutory disciplinary and dismissal procedure.

Special situations Arrangements may be necessary within disciplinary procedures, depending on the nature of work and work pattern undertaken: •

To handle problems that arise on a night or weekend shift when a full complement of managers may not be present.

•

If action is contemplated against a trade union representative to whom legislation affords special protection.

•

Where criminal charges or convictions occur that are not related to work, the employer must establish the facts and then determine whether a breach of contract has occurred. The fact that a charge or conviction has been made against an employee is not of itself sufficient to dismiss an employee safely. Nor would absence due to being placed on remand justify employment termination.


39


Circumstances in which the new Dispute Resolution Regulations procedures do not apply are: •

In some collective redundancies;

•

Where there is a dismissal then re-engagement with no break in service;

•

In industrial action dismissals;

•

Where ‘Constructive Dismissal’ is claimed (the new Grievance Procedure applies);

•

When contractual employment contravenes the law;

•

Where an employee has complained to an employment tribunal before One Step of the modified procedure was activated;

•

Employers’ business suddenly ceases due to unforeseen circumstances (death of proprietor or similarly serious event).

Summary The purpose of any disciplinary procedure should be to enable the employer to bring to the attention of an employee any alleged breach of their contract of employment, in order that, wherever possible, it may be rectified. Their purpose is not the dismissal of the employee concerned. The true purpose of any disciplinary procedure is to provide a mechanism whereby breaches of contract can be discussed between an employer and employee, in an orderly, civilised and constructive manner, so that the breach of contract complained of, can be identified, discussed and remedied. When a contract of employment is created, both parties commit to acting toward the other in a manner designed to preserve the contract. An agreement has been entered into. On the employer’s part, in return for the provision of wages, benefits and a structure within which the employee can perform his/her work, they expect in return loyalty, commitment and an intention on the part of employees to work to achieve the aims and objectives of their organization. On the employee’s part, they expect their employer to provide them with pay and the tools and organizational framework to enable them to carry out their duties. Both sides expect the other to act towards them in a reasonable and responsible way. Where one party fails in this regard the other can draw this to their attention for explanation and rectification. The employer does this through the operation of the disciplinary procedure; the employee through the grievance procedure. In both


40


cases the specific issues that the party concerned believes need attending to are drawn to the attention of the other in a structured and formalised way. Where an employer allows a breach of contract to go unchallenged over a period of time, this can lead to the contract being changed through ‘custom and practice’. The normal procedural steps required to remedy a breach of contract are, in descending order: 1.

Investigation to confirm that a breach has occurred.

2.

Informal discussion on the issue between supervisor and employee.

3.

Verbal warning requiring the employee to follow specific instructions given by the supervisor/manager.

4.

First written warning setting out the actual breach of contract and warning being given to the employee with regard to their future conduct.

5.

Final written warning clearly stating that any further breach of contract will lead to the contract of employment being terminated.

6.

Dismissal – with contractual notice – unless the action complained of is ‘gross’.

In certain instances the actions of the offending party can be so ‘gross’, so outrageous, as to demonstrate the intention of that party to be no longer bound by the terms of the contract (agreement). A repudiation of contract then occurs. Where an employee acts in this way an act of ‘Gross Misconduct’ is deemed to have taken place. Where an employer acts similarly in an outrageous manner, the employee can conclude that they have been ‘Constructively Dismissed’. The actions of the employer having brought the contract to an end. In either case it can be taken that the contract has been irretrievably destroyed by the actions of the other; in effect the contract is over. It is for this reason that Gross Misconduct offences lead to dismissal without notice. Notice cannot be given to end an agreement that is demonstrably over; destroyed by the actions of the employee. The introduction by the Dispute Resolution Regulations of the Three Step, and Two Step procedures does no more than formalise what has been good practice in commerce and industry for many years. Their introduction will hit hardest with small employers who have previously managed their businesses without formal procedures and, who through the introduction of the Regulations, will be required to introduce a degree of formality in their business which may at first appear alien and foreign to their management style. Over time, however,


41


these procedures should become the norm and second nature to all employers and employees. The work of the Employment Tribunals will certainly be eased by the introduction of the new formal procedures, as there is no doubt that properly used, the job involved in determining if a dismissal is fair or unfair, will be made much easier.


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Chapter 5 Disciplinary procedures step-by-step Investigation.........................................................................................44 Informal disciplinary action ...............................................................47 Formal disciplinary action..................................................................47 Invitations to a meeting ......................................................................48 Provision of evidence ..........................................................................49 The right to be accompanied..............................................................50 The disciplinary meeting.....................................................................51 Handling disciplinary meetings .........................................................53 Records of disciplinary meetings.......................................................56

Chapter 5 Disciplinary procedures step-by-step

Investigation No disciplinary action should be contemplated by a manager or supervisor before they are sure, on the information available to them, that a breach of contract has occurred. Any management activity not associated directly with achieving the aims and objectives of their employing organization, such as dealing with possible breaches of contract, is expensive, potentially disruptive and time consuming. Discipline is not an end in itself; the question must always be asked as to whether the possible breach of contract being considered is one which damages, or has the potential to damage, the organization concerned. If the answer to this question is ‘No’ then thought should be given as to the desirability of proceeding further with the disciplinary action being considered. Action taken on ‘moral grounds’ may make managers feel good, but may not be a proper use of their time. It may be that with a little thought the problem under review can be dealt with far more effectively through management appraisals, extra training, or the introduction of fresh operating procedures. Managers should also be wary of leaping to conclusions too quickly, as on occasion things may not be what they seem. Years ago when working as a Personnel Manager in a large truck manufacturing plant in Dunstable I was, with my management colleagues, grappling to deal with an outbreak of wanton vandalism and sabotage of plant, equipment and components. Our truck and van assembly lines were being systematically damaged to prevent them working smoothly, leading to large amounts of ‘down time’ when production was halted. Also, components were being deliberately damaged making them unfit for use. Whilst working in my office one August morning preparing for a round of trade union pay negotiations with the staff unions, I was rudely interrupted by the Plant Director bursting into my office hauling with him a clearly frightened and indignant production operator.


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5 D I S C I P L I N A RY P R O C E D U R E S S T E P - B Y- S T E P

“I’ve caught one!” exclaimed the florid faced and clearly angry Plant Director gesticulating to the employee. “I caught him red-handedly attacking a gearbox with a hammer in an attempt to damage it. I want him sacked immediately!” With that the Plant Director swept out of my office leaving the employee and I looking at each other. As the Director departed, I heard my outer office being filled with shop stewards, who were demanding to know why one of their members had been manhandled off the assembly line by the Plant Director. I sat the employee down and invited the most senior shop steward into my office to act as his representative as I attempted to get to the bottom of what had actually happened. Through interviewing the employee and subsequently his supervisor, I managed to ascertain what had happened which led to the man being hauled into my office in such an unceremonious manner. It appeared that the operator had only been working on this section of the assembly line for one shift, of which only one hour had elapsed. His job entailed fitting the front end of the exhaust system underneath the vehicle, next to the rear of the gearbox. He had been instructed in this activity by another operator who had been carrying out the same function the previous day. This operator had found that the front end of the exhaust pipes were slightly misaligned and in order to maintain production he had taken to hitting the pipes with a large hammer to correct the misalignment. He had pointed out the necessity for this crude rectification process to the new operator, who now sat in my office demanding an apology for the way he had been treated when he had ‘only been carrying out my job.’ What had appeared as deliberate damage to company property, had in fact merely been an attempt to keep the production line running, a laudable intention indeed. My most difficult task then became the need to placate the Plant Director, and convince him that what he had observed was not a deliberate attempt to sabotage or damage components, but merely an attempt to keep production running and crudely rectify faulty parts. No easy task! This event reinforced for me the essential requirement to approach even the most apparently blatant and evident breach of contract cautiously, and not to proceed without first investigating and verifying that the facts as observed, were indeed correct, and what they seemed to be. Whenever an issue arises that could lead to the possibility of disciplinary action, the employer should make every effort to establish the facts before proceeding to commence disciplinary action. If the issue is one of alleged misconduct, it is important to act fast while memories of events remain clear. Any delay could prejudice the fairness of any outcome. Notes of the investigation should be taken


45


at every stage, in order that they can be produced, if required, either during the disciplinary proceedings, or at any subsequent tribunal hearing. In minor cases such an investigation can be cursory. However, in more serious cases a thorough investigation may be required, which may include suspending the employee/s concerned on full pay and benefits, (unless the employee’s contract of employment allows for suspension without pay or benefits) whilst the investigation is under way. Only when the investigation has been completed with notes, and any other records, which might, in serious cases, include statements from employees, being kept for future reference, will it be possible to ascertain whether or not a breach of contract has occurred requiring corrective disciplinary action on the part of management. It is very important that investigations do not reach any conclusion on the breach, or alleged breach of contract. The investigator should merely assemble the facts, not reach any conclusions based upon them ahead of any disciplinary hearing. Most certainly no investigation will be complete until the employee concerned has had every opportunity to put their side of the case. It is essential to remember that the purpose of the investigation is to determine if a breach of contract has occurred, and if so, what the appropriate corrective disciplinary action should be. It is not a criminal investigation, unless a crime has been suspected, and in such cases consideration must be given at an early stage as to whether, or when the police should become involved. The results of any investigation will determine whether to drop the matter concerned, deal with it informally, or arrange for it to be dealt with formally. It should be made clear to the employee at an early stage that the investigation is not of itself disciplinary action, merely an assessment of the facts to determine whether a breach of contract has taken place that needs to be addressed by the parties. In cases other than misconduct, the gathering of facts is equally relevant. In cases of either short-, or long-term absence, the facts will be the dates of the periods of absence, together with any documentary evidence, such as sick notes, letters etc that relate to the absences. In cases of poor performance, or lack of capability, the evidence will consist of examples of the work complained of, any complaints from customers, information on the training provided to the employee and any other relevant matter.


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Informal disciplinary action Cases of minor misconduct or unsatisfactory performance are usually best dealt with informally. A quiet word is often all that is required to improve an employee’s conduct or performance. The informal approach is particularly helpful in small firms where relationships are invariably closer and the speedy operation of a formal procedure more likely to be misunderstood and counter productive. Where, however, serious misconduct or performance is involved, or where the informal approach has been tried and failed, then the use of the formal procedure may be inevitable. A manager or supervisor would be well advised, even with informal warnings, to make a diary note of any relevant conversations as an ‘aide memoir’.

Formal disciplinary action In accordance with the requirements of the Disputes Resolution Regulations, the first step in the operation of any formal disciplinary procedure is to notify the employee in writing, through what is known in the Regulations as a ‘One Step statement’ (letter), about the matter concerning the employee, which has led the employer to contemplate dismissing, or taking serious disciplinary action against the employee. This statement, or letter, should contain enough information for the employee to be able to understand what the issue, or issues are, that are being addressed by the letter, and the reasons why this is considered important enough to be raised in writing. The letter should state that the matter will be considered formally through meeting with the employee, and that the outcome of any meeting could lead to disciplinary action being taken against them. The letter should also remind the employee of their right to be accompanied at any disciplinary, or subsequent appeal meeting, by another employee of their choice, or their trade union representative. If English is not the employee’s first language, the manager or employer should take steps to ensure that the employee fully understands what is being said in the letter, and should ask whether the employee requires assistance, in the form of an interpreter being present at any disciplinary or appeal meeting, to ensure that the employee is able to understand and follow the proceedings. The letter should invite the employee to a meeting to discuss the issue/s and should include the proposed date, venue and time of the meeting. Finally, the employee should


47


be provided with copies of any documentation that will be used during the meeting when considering the issue/s concerned. The Regulations state that the employer is expressly required, to ‘send a statement to the employee’. However, there is no specific requirement to ensure that the employee receives the statement. So if the statement is sent to the employee’s correct address, but does not arrive, or gets lost in the post, the employer will, theoretically, have complied with this requirement. However, compliance with the literal wording of the Regulations will not lead to an automatic finding of fair treatment. The employer is at all times required to act reasonably. If an employer dismisses an employee for misconduct, without the employee having first had an opportunity to rebut the allegations made against them, then any disciplinary action that results will almost certainly be considered unfair, unless the employer can demonstrate that they have made every effort to contact the employee, and given them an opportunity to defend themselves against any allegations being made. If an employer sends a One Step statement to an employee who is absent through sickness, the employer should, in the absence of a response from the employee, attempt to make contact with the employee for a second time to check that the employee has received the statement. As always, records should be kept of all One Step statements or letters sent, and of all attempts to deliver them.

Invitations to a meeting There is no requirement in the Regulations that the invitation to a meeting be in writing. However, an employer who invites an employee to a meeting verbally may have difficulty at a later stage if called upon to prove that such an invitation was indeed issued. The sensible action would be to include any such invitation in the initial letter advising the employee of the matter under consideration. Finally, it is good practice in any letter inviting an employee to a disciplinary meeting, to remind them of their right to be accompanied.


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Provision of evidence The amount and type of documentary information to be included with the One Step letter is not clarified in either the Act, or the ACAS Code of Practice, however, the employer must set out in writing the employee’s alleged conduct or other circumstances which lead to him contemplating disciplining, or dismissing the employee. It is likely that this information will amount, in a misconduct situation, to evidence that has emerged from the employer’s investigation into the matter in question. The employee will need to be aware of any such evidence in order to be able to explain his or her case. The grounds for including such information, however, is not limited to misconduct cases. When the matter was debated in the House of Lords, it was emphasised that although investigations are usually associated only with misconduct cases, the government believed that the gathering and prior disclosure of all relevant information was just as appropriate in any disciplinary or redundancy matter. Also, if the issue relates to lateness, or frequent absence, it is advisable to include with the letter a summary of the dates and times when absences or lateness occurred. Where the investigation into an allegation of misconduct has led to the production of witness statements from employees working in the immediate vicinity of the employee concerned, thought needs to be given as to whether or not to send such witness statements to the employee ahead of the meeting. Certainly it would not be a good idea for the statements to include any names, or other identification, enabling the employee to identify the employee/s concerned. Where common sense prevents this, due to the content of the statements making it inevitable that the identity of the employee/s concerned would be revealed simply by reading the statements, I would recommend that a summary of the evidence, drawn from the witness statements be written up and issued to the employee concerned, to avoid any unpleasantness or friction developing in the workplace ahead of the actual meeting. The employee and their representative can be afforded additional time immediately preceding the disciplinary meeting, to peruse the actual statements, and prepare questions for the witnesses concerned, if required. A failure to provide sufficient information to enable the employee to properly prepare their defence to any allegations being made of a breach of contract, will almost certainly render any subsequent disciplinary action or dismissal unfair.


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The right to be accompanied Employees have a statutory right to be accompanied by a fellow worker or a trade union official, whenever they are required, or invited by their employer, to attend at either a disciplinary, or grievance hearing. There is no requirement for the trade union concerned to be recognised by the employer for bargaining purposes for this right to be valid. A simple request by the employee for their trade union representative to be in attendance at any meeting will suffice. A refusal by an employer to allow such attendance, will be a breach of the statutory procedural requirements, and could lead to a complaint on these grounds to an employment tribunal. The right to be accompanied will apply to any disciplinary meetings held as part of the statutory disciplinary or dismissal procedures. This includes any meetings that take place after the employee has left the employment of the employer. Informal discussions, or counselling, do not qualify for the right to accompanied. When an employee is choosing a companion it would not be reasonable to insist on being accompanied by a colleague whose presence could prejudice the proceedings in any way, or lead to a conflict of interest arising. Nor would it be considered reasonable to ask to be accompanied by a colleague from a far distant geographical location. The Regulations are clear that the companion may be: •

A fellow worker (from the employer’s workforce).

•

An official employed by a trade union, or a lay trade union official, as long as they have been certified in writing by the trade union concerned, as having experience of, or having received training in, acting as a workers’ representative at disciplinary or grievance hearings. Certification may take the form of a letter, or card.

Fellow workers or trade union officials do not have to agree to any request to accompany an employee at any disciplinary or grievance hearing and it would be improper if pressure was exerted on them to attend. Any worker who agrees to attend as a companion for another employee at either a disciplinary or a grievance hearing is entitled to have a reasonable amount of paid time off to fulfil that responsibility. This should cover not only the hearing, but also time to understand the facts of the matter and to prepare for the actual hearing. Wherever possible the employer should allow the companion to have a say in the timing and the date of the meeting. If the companion cannot attend on the


50


proposed date, an alternative time can be suggested, as long as it is not longer than five days after the original date chosen by the employer. Care should be taken to cater for the special circumstances that could arise if either the employee concerned, or their companion, was disabled in any way. It could be that they will require assistance, which may involve another person helping them, if the meeting is to be considered fair. Before any hearing the employee should tell their employer who they have chosen to accompany them. The companion should be allowed to address the hearing in order to: •

Put the employee’s case;

•

Sum up the employee’s case;

•

Respond on the employee’s behalf to any view expressed at the hearing.

They may also confer with the employee during the meeting and ask questions of any witness who is in attendance at the meeting. They should not, however, answer any question put to the employee, on the employee’s behalf. Nor should they prevent the employee from putting their own case to the meeting. Employees whose employers fail to comply with a reasonable request to be accompanied at a hearing may present a complaint on these grounds to an Employment Tribunal. Employees may also complain if the employer fails to rearrange a meeting if the chosen companion is unable to make the original hearing date. Where a tribunal finds these facts proven it may award compensation of up to two weeks’ pay and this could be increased if the tribunal also finds that the employee was unfairly dismissed.

The disciplinary meeting Schedule 2 of Part 1 of the 2002 Employment Act states that: •

A meeting must take place before any disciplinary action takes place and

•

The meeting must not take place unless: –

The employer has informed the employee what the basis was for including in the Statement under Step 1, the ground or grounds given in it, and

–

The employee has had a reasonable opportunity to consider his or her response to that information.


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•

The employee must take all reasonable steps to attend the meeting, and

•

After the meeting, the employer must inform the employee of (sic) his decision and notify the employee of the right to appeal against the decision if he or she is not satisfied with it.

Wherever possible the timing and location of the meeting should be agreed in advance with the employee. The length of time between the written notification and the meeting taking place should be long enough to allow the employee to prepare for the meeting. But not so long that memories fade. The meeting should be held in a private location and steps should be taken to ensure that the meeting can proceed without interruption. Prior to any meeting taking place, the employee must be given a reasonable opportunity to consider his or her responses to the information contained in the One Step statement. The concept of reasonableness is written throughout the statutory procedures. There is no definition in the Regulations as to what would be considered a reasonable period to consider the facts given to an employee in a One Step statement. However it can be assumed that a period of between two and three days as a minimum would be required to meet this requirement in a case of simple misconduct or absence from work. The complexity of the circumstances involved in each case of potential disciplinary action should be used by employers as an indicator of what would be considered a reasonable period of time in any particular disciplinary case. The DDP states that the employee must take all reasonable steps to attend the Two Step meeting. Normally the employer will invite the employee to attend such a meeting during working hours. Where an employee falls ill, or is prevented from attending on other valid grounds, the employer should offer the employee an alternative meeting date. A decision may be taken in the employee’s absence if they fail to attend the rearranged meeting without good cause. One factor which could influence the timing of any meeting is the availability of the employee’s chosen companion, or their trade union representative, to attend the meeting on a specific date and time. If the companion cannot attend on a proposed date, the employer can suggest an alternative time and date, so long as it is reasonable, and is not more than five days after the original date chosen for the meeting. At the meeting the employer should outline the complaint against the employee and go through any evidence that has been gathered in support of the allegation. The employee should be allowed to set out their case and answer any allegations that have been made against them. The employee should also be allowed to ask questions as the proceedings develop, present any evidence they


52


may wish to present to the meeting, call witnesses of their own, and be given the opportunity to raise points against any information provided by witnesses. During the meeting the employer should take note of the proceedings (or arrange for someone to take notes on their behalf). These notes can be written up after the meeting has ended and agreed wherever possible with the employee. Where agreement is not possible, then any difference of recollection should be recorded. At the conclusion of the meeting the employer must decide what action if any should be taken in regard to the matters that have been the subject of the meeting. The possible outcomes of a disciplinary meeting are: 1.

Further information required and meeting adjourned to enable such information to be gathered.

2.

No breach of contract has occurred and no further action required

3.

Training needs identified and agreed.

4.

A minor breach of contract has occurred and corrective action is required.

5.

A serious breach of contract has been identified and serious action, possibly the termination of the contract of employment is the appropriate action to take.

Handling disciplinary meetings All too often in business and commerce managers are promoted, or appointed to their positions because of their technical or specialist knowledge. There seems to be a wholly unfounded belief that because a manager is good technically, that he or she will automatically be a good manager of people. Yet the effective management of people is a skill; very few people have a natural talent in this essential area of business. Good managers are leaders who possess, or have learned, the essential skills necessary for directing and enthusing their staff with the attitudes necessary to achieve peak performance, and attain departmental objectives. The same assumptions that lead to the appointment of managers without first providing them with the necessary training to ensure that they understand, and are able, to carry out their new roles effectively also occurs when it comes to holding or conducting disciplinary or grievance meetings. Managers who are


53


charged with the responsibility of conducting these hearings must understand the essential requirements for carrying out these most exacting and important tasks. This can only properly be done by providing training in this aspect of management. Managers should be trained to enable them to: •

Be familiar with every aspect of their business’ rules, disciplinary and grievance procedures.

•

Approach the task of running a disciplinary or grievance hearing meeting with an open mind free of any prior misconceptions or bias.

•

Ensure that all of the steps that must be taken prior to any hearing are properly followed, such as the One Step letters, or statements being sent in the case of a disciplinary hearing, or received in the case of a grievance hearing. These, together with essential supporting evidence or documentation being sent to, or received from, the employee/s concerned in good time to enable proper preparation for the meeting.

•

Ensure that the employee has been advised of their right to be represented by an employee, or trade union representative of their choice.

•

Be assisted by a colleague whose job will be to handle the administrative tasks associated with any meeting of a disciplinary or grievance nature, such as note taking, liaising with the employee and his or her representative, dealing with minor administrative matters as they arise, circulating and agreeing the record of the meeting etc.

•

Arrange for a meeting venue where the matters in questions can be dealt with in privacy and without interruption. Wherever possible a side room or alternative venue should be available to accommodate adjournments.

•

Open any meeting by ensuring that all of the matters under point 3 above have been carried out to the employee’s satisfaction.

•

Agree the agenda for the meeting with the employee and his/her representative.

•

Ensure that the representative understands the role they are to play in the meeting and are happy with the format and structure of the meeting.

•

Open the formal part of the meeting by setting out its purpose and outlining the management reasons for calling, or agreeing to the meeting, and in disciplinary hearings, go on to introduce the relevant


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information and any evidence that management has gathered together before calling the meeting. In grievance meetings refer to the contents of the One Step letter and invite the employee to expand on their reasons for seeking a meeting with management to discuss the issue in question. •

Invite the employee (and representative) to put their side of the matter, and assist them in questioning, or expanding on the evidence available to the meeting, and allow them to raise any points with which they have concern, or wish to bring to management’s attention.

•

Allow for adjournments to occur where additional information is required, or there is clearly a need to enable the employee and his/her representative to consider their position. The length of each adjournment being appropriate to its need.

•

Conclude any disciplinary meeting by either confirming that no breach of contract has occurred, thanking the employee and representative for their attendance at the meeting, or, sum up the facts as they find them which lead them to believe that a breach of contract has occurred which requires remedial action.

•

Conclude any grievance meeting by agreeing with the employee the action/s that will be taken to resolve the grievance/s, or set out the reasons why they believe that no further action is required from management to deal with the matter/s raised.

•

Adjourn the meeting, before deciding on any disciplinary action necessary to deal effectively with any specific identified breaches of contract that may have occurred, bearing in mind the principal of taking remedial, not punitive action wherever possible.

•

Announce any decision/s that have been reached, and remind the employee of their right of appeal if they disagree with the meeting’s findings.

•

Agree the notes with the person charged with the task of drafting these, ensuring that the employee and his/her representative have the opportunity to comment on them before their final production. Where agreement is not possible arrange for the employee’s version of events to be recorded separately.

•

Write to the employee concerned, with a copy to the representative where appropriate, setting out their findings and any further action that will be taken on either the disciplinary, or grievance matter/s discussed at the meeting. This letter should remind the employee of their right of appeal.


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Records of disciplinary meetings Reference has been made throughout to the importance of record taking during all formal meetings with employees. The aim of management should be to create what auditors call a ‘paper trail’. This ‘paper trail’ will enable any subsequent review, or Employment Tribunal hearing to follow the proceedings that took place, simply by reviewing the minutes and records of the meetings, together with any associated documentation. Employers should keep written records of all disciplinary meetings (not verbatim however). These records should be agreed, wherever possible and shared with the employee. Where agreement is not possible, the employee’s recollection of events should be recorded separately from the employer’s record and retained for future reference. Note: These records should include as a minimum: 1.

The complaint against the employee;

2.

The employee’s defence;

3.

Findings made and actions taken;

4.

The reasons for actions taken;

5.

Whether an appeal was lodged;

6.

The outcome of the appeal;

7.

Any grievances raised during the disciplinary procedure; and

8.

Subsequent developments;

9.

All records should be treated as confidential under the Data Protection Act 1998.

The importance of good clear records cannot be under stated. At any subsequent Employment Tribunal these documents can be ‘worth their weight in gold’. Verbal testimony has value when given by competent and confident witnesses, but it can be challenged and shaken by good cross examination. But when such testimony is validated by supporting agreed documentation, the testimony of even a weak witness is strengthened immeasurably, and the value of cross examination subsequently diminished.


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Chapter 6 Disciplinary sanctions Disciplinary sanctions and warnings ................................................58 Poor performance issues – capability................................................60 Sickness, lateness and absence ..........................................................60 Misconduct and gross misconduct....................................................63

Chapter 6 Disciplinary sanctions

Disciplinary sanctions and warnings Disciplinary sanctions should be designed to remedy any identified significant breach of contract. Their purpose is to draw to the attention of employees areas of their performance which may be unsatisfactory, or which may fall short of the standards agreed at the commencement of their contract, and to give every help and opportunity to enable employees to improve to the standards required. The perfect employee, like the perfect person, has not yet been born (religious icons excluded!). People are fallible and prone to make mistakes and errors of judgment from time to time. Managers as ‘enablers’ should always be working to assist employees to raise their levels of performance through encouragement, training and example. When disciplinary action is unavoidable, the normal sequence of sanctions is: •

First offence – verbal warning

•

Repeat offence –or more serious offence – written warning

•

Repeat offence, or very serious breach of rules – final written warning

•

Repeat offence, or extremely serious breach of rules – dismissal with notice (or pay in lieu)

•

Gross misconduct – dismissal without notice (only after suspension and investigation).

The purpose of any disciplinary procedure is correction, not punishment. Thus regard should be given, when a breach of contract is proven, to the appropriate level of disciplinary action required to correct the breach. It may be a case of simply drawing the matter to the attention of the employee, and asking them to change their offending behaviour. This is the purpose of the lower levels of disciplinary sanction such as the verbal, or first written warning. More serious action may be called for, however, and this is the purpose of the second, or final written warning.


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6 D I S C I P L I N A RY S A N C T I O N S

A final written warning should be just that. It is one step away from dismissal. It is saying effectively that this is the last chance for the employee to work to the standards laid down by the contract of employment. They are, to coin a phrase ‘Drinking in the Last Chance Saloon.’ Managers should avoid any ambiguity when writing these. Phrases such as ‘Your employment may be terminated’ must be avoided. The letter must state clearly and unambiguously that the employment will end if the breach, or a similar breach reoccurs. Where the breach is persistent, or very serious, then the ultimate step of ending the contract may be the only route left open to the employer. When such action is required, the employer is recognising the reality that the contract cannot continue. That the employee’s performance – or non-performance is such that there is no alternative but to end the contract of employment and seek a fresh recruit to carry out the work for which the dismissed employee was engaged. In such cases the contract will end by the employer giving the requisite notice to the employee, unless the dismissal is on the grounds of Gross Misconduct. Gross Misconduct dismissals are without notice, or pay in lieu of notice. Warnings do not remain live for ever. It is important they should be erased after time, although evidence of the warning can remain in an employee’s personnel file. The recommended life of a warning depends on its severity but as a broad guide: •

Verbal warning – three months.

•

1st Written warning – six months.

•

2nd or final written warning – 12 months minimum.

Certain organizations also allow for demotion or reduction in pay and benefits as an alternative to dismissal, but these can only be invoked where the contract of employment allows for this, and the employee agrees. To impose a change in any fundamental term of an employee’s term of employment, without their prior agreement, is to risk a successful claim of unfair ‘constructive dismissal’. The sequence of warnings does not have to be followed like ‘steps in a ladder’. The severity of the breach will indicate the level of disciplinary sanction needed to rectify it. The objective is always to get the employee back within the framework of the contract of employment, operating as required by its terms.


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Poor performance issues – capability Where warnings are issued to an employee designed to rectify poor performance, these should clearly set out the standard of performance that is required, together with any training or assistance that will be provided to them to enable them to reach the required performance standard. It is good practice to include a date when the employee’s performance will be reviewed again, to determine if the required standard has been reached. This will not preclude the possibility of further disciplinary action taking place if the desired level of performance is not achieved earlier. Finally, the name of a supervisor or other employee to whom the employee concerned can refer if they require any help or assistance in the interim between meeting and review, should be included, with the supervisor, or named employee, being copied in and notified accordingly.

Sickness, lateness and absence Capability issues, such as frequent sickness absence, regular lateness for work and other unscheduled absences, are capable of a report on their own merits (see Employee sickness and fitness for work by Gillian Howard published by Thorogood). They are radically different from dealing with other capability issues. However, any absence from work that has not been subject to prior agreement, is ‘de facto’, a breach of contract. Holidays are an agreed absence from work. They are part of the contract terms and are almost always agreed in advance. Sickness, lateness and other absences, however, are not. In their initial form they are a breach of contract that is subsequently approved through the provision of satisfactory supporting information, or evidence being given to the employer by the employee. Until approval has been given, they remain a breach of contract. All properly drafted statements of terms and particulars of employment will include a section dealing with absence through illness or other reason. These will require notification by employees of the reason for their absence, normally on the first morning, or period of absence; followed up thereafter in the case of sickness, with supporting documentation – either in the form of a self certificate, or a doctor’s note that validates the sickness. Issuing a disciplinary warning to employees who have been, or are, absent through sickness, can seem inappropriate. There is something faintly ludicrous in warning an employee not to be sick again, or sick as frequently, particularly when the sickness is genuine, and not merely a case of malingering. However,


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this is not to say that the issue of absence through ‘sickness’ is not a serious issue. In certain public employing organizations, sickness absence has reached almost epidemic proportions – up to an average of five weeks a year in some reported instances in 2005. This means, when added to 20 statutory days holiday plus seven bank or public holidays, that employees in these organizations are absent for over ten weeks a year – almost 20% of the working year! A serious and expensive management problem indeed. The only way that management can proceed in such circumstance is by demanding clear medical evidence of sickness absences, before taking further action. Frequently absent employees should be interviewed on the circumstances relating to their absence by their manager or supervisor upon their return to work – on every occasion. Where employees are in the habit of providing self certification to cover frequent short-term absences, employers should demand that these be replaced by doctor’s sickness certificates, even if the employer covers the cost of these. Only by rigorously checking, and following up each absence, will lasting change be achieved. There are no short cuts to achieving the change in culture necessary to force absence down where it has become an established part of the culture of any organization. Before taking serious disciplinary action against employees who are frequently absent from work, employers would be well advised to: •

Investigate the facts, review the attendance record of the employee concerned, and the reasons given for the absences. Consider the pattern of the absences, to see whether they fall into any pattern that would give indication of any reason, other than sickness, for the absences.

•

Consider the employee’s explanations for the absences, by interviewing them, and showing them evidence of their attendance record. Listen to their explanations.

•

Warn the employee under the disciplinary procedure that their level of absenteeism is unacceptable; that they must improve, explaining the time limit within which this must be done if more serious disciplinary action is not to follow.

•

Consider, and apply the appropriate penalty.

•

Continue to monitor the employee’s attendance record.

If the absences continue, and the contract of employment allows for it, (the inclusion of such a clause into a contract of employment is to be strongly recommended)


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the employee should be medically examined by a doctor selected for this purpose, and paid for by the employer. The doctor should be sent full details of the employee’s absences, together with copies of any documentation that they have provided in support of these. The doctor should be provided with information on the nature of the employee’s job, and be asked to examine the employee to determine if the pattern of absences that have been demonstrated in the past, are likely to continue, and if so, if there is any action that the employer can take to help the employee to improve their attendance record. Seeking medical information about employees must be handled with extreme care and sensitivity. Where the employee is of the opposite sex from the manager concerned in the investigation, every effort must be made to ‘tread carefully’ when seeking medical information. All medical information obtained regarding an employee must be treated in the utmost confidence. Where information is sought from the employee’s own doctor, the requirements of the Medical Reports Act 1988 must be met. This gives the employee the right to see, comment on and, where considered necessary, amend the report, before it is passed to the employer. These provisions, however, do not apply when the employer nominates, and pays for, a doctor to conduct the required medical examination. The report that the employer receives back from the doctor should enable them to identify any underlying medical problem that the employee may have which is causing their absences, and enable the employee and the employer to agree on a course of action to manage this in the future – perhaps the employee can move to part-time working, or their duties be changed such as to minimize the impact of any absences they may have in the future on the efficiency and effectiveness of the organization. The doctor’s report should: •

Identify that the employee suffers from a medical condition that gives the employer no option but to terminate the employee’s contract of employment. In all such cases the employee must be given every opportunity to challenge the report’s findings before their employment is terminated. To do so, however, they must, by the very nature of their challenge, move to a position where their attendance at work is improved, or

•

State the good news that the employee has no underlying health problem that the employer must take into account. This means that the employee should be in regular attendance at work in the future.


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Where an employee refuses to undergo a medical examination, they should be told by their employer that, as a result of their refusal, the employer will be unable to take account of any medical condition they may suffer from when considering future absences. All such absences will be viewed simply as breaches of the contractual requirement that they attend for work regularly; a failure to comply with these basic contract terms will lead to warnings and ultimately dismissal. They should be advised of this fact in writing and given the opportunity to appeal against it should they so desire. The aim of the employer here should always be to obtain precise facts on which any decision regarding the employee’s future absences can be considered. If the employer is denied access to the information necessary, through the employee’s refusal to cooperate in the collection of the required information, then the employer should not, as a result, be impeded from reaching a decision on the facts that are available to them. Long-term sickness absence is another matter entirely and whilst similar in the course of action that must be followed when considering possible dismissal, it must be handled in a manner set out later in this Report.

Misconduct and gross misconduct The definition of misconduct is any action, under the employee’s direct control, that is a breach of the employing organization’s rules and operating procedures. Where an employee has misconducted him/herself then action is required (through the disciplinary procedure) on the part of the employer to point out why the conduct complained of is unacceptable, with a request that the employee does not repeat the behaviour which has already been complained about: The rules and operating procedures will lay down the standards of performance and behaviour required of employees in order to properly carry out their duties and fulfil their obligations to their employer. Rules such as those listed in Chapter 2 viz: •

Unsatisfactory work performance

•

Harassment, victimisation or bullying

•

Misuse of company facilities (such as e-mail, internet, vehicles and other equipment etc)

•

Poor timekeeping

•

Unauthorised absence


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•

Failure to follow instructions

•

Failure to observe safety rules

•

Misconduct – which can cover a wide definition

•

Gross Misconduct

•

A ‘catch all clause’ stating that any given list is not exhaustive

•

Health and safety matters.

These are all issues where a failure to comply will lead to disciplinary action depending on the severity of the breach. They are clearly distinguishable from Gross Misconduct which is action so serious as to enable the employer to conclude that the action complained of has destroyed the contract of employment; such as when the employee absconds with money from the till, or assaults another employee. In such cases when the employer is satisfied that what he believes has happened, has in fact happened, then the contract is over. It has been ended by the actions of the employee. There is no doubt in the matter. The fundamental basis of ‘trust and confidence’ required for the proper continuation of any contract has been irredeemably destroyed by the employee’s actions, or lack of them. Acts such as: •

Fighting or drunkenness

•

Illegal drug taking and alcohol use during working hours – (or outside if driving or flying is involved)

•

Theft or fraud

•

Physical violence or extreme bullying

•

Deliberate and serious damage to property

•

Serious insubordination

•

Unlawful discrimination or harassment

•

Bringing the organization into serious disrepute

•

Serious negligence

•

A serious breach of health and safety rules

•

A fundamental breach of trust and confidence.

All fall into this category. However, the burden of proof always remains with the employer in every instance of misconduct, or gross misconduct, to establish justification for any discipli-


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nary action that they may have taken. The burden is not as onerous as that required by a court of law, which is defined as ‘beyond reasonable doubt’, but none the less it is action such as no employer would reach without first carrying out a full and proper investigation to establish the facts. Over time the Employment Tribunal system has established the tests that employers can be expected to meet if they wish to satisfy the requirements necessary to establish a ‘fair’, as opposed to an ‘unfair’ dismissal. These tests are appropriate guides when dealing with any matter that falls under the heading of either ‘Misconduct’ or ’Gross Misconduct’. The leading case over the years concerning misconduct has been British Home Stores v Burchell (1978 EAT). This was a case of Unfair Dismissal on the grounds of misconduct which focused on the reasonableness of the dismissal. This case established the steps that an employer must follow if a misconduct dismissal is to be found ‘fair’. The employer must: •

Entertain a reasonable belief in the guilt of the employee

•

Establish the fact of the belief and the fact that they did believe it

•

Have reasonable grounds on which to sustain the belief

•

Demonstrate that they had carried out as much investigation into the matter as was reasonable in all of the circumstances

Although the tests set out in British Home Stores Ltd v Burchell are a useful guide in assessing the reasonableness of conduct dismissals, a simplistic application of the test in each and every conduct case may lead to errors occurring. In applying the test, tribunals are advised to bear in mind that an investigation may not be appropriate, or required in cases where the employee has admitted to the misconduct in question; and that, even where the dismissal fails one or more parts of the test, it is still necessary for any tribunal to consider whether the dismissal came within the band of reasonable responses open to the employer. Whilst ‘Burchell’ concerns dismissal, the tests it sets are appropriate to any case of serious misconduct, whether or not the outcome is the dismissal of the employee in question, and it serves to act as a yardstick when considering any issue of alleged misconduct.


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Chapter 7 Ending employment How employment can end..................................................................67 Resignation...........................................................................................67 Termination by mutual agreement.....................................................69 Compromise agreements....................................................................70 Requirements of a compromise agreement......................................71 Independence of adviser.....................................................................72 The conclusion of a fixed term contract............................................73 Dismissals with notice and summary dismissals .............................73 Capability dismissals ..........................................................................78 Skill and aptitude .................................................................................78 Ill health dismissals..............................................................................79 Qualification dismissals.......................................................................81 Conduct dismissals..............................................................................82 Redundancy dismissals ......................................................................83

Chapter 7 Ending employment

How employment can end Employment can end through: •

Resignation

•

Termination by mutual agreement

•

The conclusion of a fixed term contract

•

Dismissal with notice or summary dismissal

•

Redundancy

•

Contravention of a statutory duty

•

Some Other Substantial Reason (SOSR)

•

Frustration

Resignation The general principle to be observed here is that either party can give notice to the other to terminate the contract of employment and that once notice has been given it cannot be unilaterally withdrawn. The length of notice can be agreed between the parties but must not be less than that allowed for by statute, which is: •

not less than one week’s notice if the period of continuous service is less than two years, but over one month.

•

not less than one week’s notice for each year of continual employment of two years or more, to a maximum of 12 weeks notice after 12 years continuous service.

The statutory notice period must be paid by employers when ending employment irrespective of the employee’s circumstances. Employers often find it difficult to grasp that when they end the employment of an employee who has


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been absent from work on the grounds of sickness for a lengthy period, so lengthy that they have long since ceased to be entitled to any pay from their employer, that the employee must still be paid their full notice entitlement when their employment is ended by the employer. The minimum statutory notice provision does not prevent either party from waiving the right to notice, or effect the right of either party to terminate the contract without notice in response to a serious breach of contract by the other, or prevent the employee accepting payment in lieu of notice. If notice (other than the statutory minimum) has not been expressly agreed between the parties to the contract, then the law requires that ‘reasonable notice’ be given, with the length of the notice being dependant upon factors such as seniority, status, length of service etc. None of this should detract from the requirement to provide, as a minimum platform, the statutory notice as set out above. Employers must avoid accepting ambiguous resignations where words are used in the ‘heat of the moment’ that could be interpreted as a resignation on the part of an employee. Where employees give verbal notice and provide nothing to their employer in writing, then the employer should create their own evidence by writing to the employee and confirming their acceptance of the verbally given notice. In this way, written documentation will exist if at a later stage the employee claims they were dismissed and did not resign, or intend to resign. The test applied by tribunals here is what an objective reasonable listener, taking all the facts and circumstances into account, would have concluded from the words used. Where an employee resigns in ’the heat of the moment’, a tribunal or court would expect the employer to have subsequently made ‘reasonable investigations’ to establish if the employee really meant to resign, or was simply letting off steam. The employer in these circumstances would be expected to give the employee an opportunity to clarify the situation and confirm their intentions. Problems can arise when employees do not want to work their notice periods, however short. Either party can waive the notice period; though an employer faced with such an option would be well advised to insist on a written request to waive the notice period before agreeing to grant it. Where employees simply walk away without working their notice period they are in breach of contract. Technically an employer would be entitled to take legal action to recover any costs incurred by them in plugging the gap in their operation caused by such behaviour. Usually, however, it is not worth the time and legal costs that would be incurred by following such a course of action.


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One step that can be taken to minimize the cost of such a refusal to work notice, is to write into all contracts of employment the right of the employer to deduct from any outstanding holiday pay that may be owed to the employee, an amount equivalent to the period of notice not worked by the departing employee. Provided that this right was clearly set out in the contract, then the employer would not be in breach of the Wages Act, which makes deductions from pay unlawful, unless agreed in writing between the parties. Where the notice period set out in the contract is lengthy, it is very often difficult to force an employee to work their period when they have made up their mind to leave. It is not unusual for periods of three to six months to be the norm in directors’ or senior employees’ service contracts. The reasoning behind providing such lengthy periods of notice is that they give comfort to valuable employees in the event of termination, that they will have a reasonable financial cushion available to provide for them whilst they seek alternative employment. On the employer’s part the attraction can be that a senior employer cannot simply give a short period of notice to end the contract and walk into a similar position with a competitor. Whilst this risk can be guarded against through the drafting of specific restrictive covenants to protect the employer’s business, there is no guarantee that such covenants will be upheld by the courts if tested. In all too many cases long periods of notice result in either the employee receiving a lump sum payment in lieu of notice, or alternatively, where the employer believes that the employee intends to join a competitor, the operation of ‘garden leave’. Under this term the employee remains at home during the notice period available to their employer if required. In this way the employee is theoretically prevented from working for any other business.

Termination by mutual agreement As contracts are entered into through mutual agreement, so they can be similarly ended. The circumstances in which a contract can be said to have ended by ‘mutual agreement’ will turn on the facts of the termination of employment. Over the years the courts have examined many such cases and each has turned on its own merits. In one case (Igbo v Johnson Matthey Chemical Ltd 1986) an employee sought extended leave to visit her husband and children overseas. Her employers agreed, but stipulated that if she did not return by a specific agreed date her contract of employment would be automatically terminated. This was put in writing and agreed by both parties. The employee did return to this country


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prior to the date agreed, but was too sick to report for work on the due date. The employer terminated the employment on the terms previously agreed. The employee complained that she had been dismissed and the courts found in her favour, stating that the reason for the employee’s failure to return to work was not the extended leave, but sickness, an event which could have occurred at any time under the terms of the contract. There may be circumstances where both parties are aware that the contract is not working to the satisfaction of either. It is always open to them to seek a mutually satisfactory resolution. This can include the termination of the contract on terms agreeable to both parties. The law provides for this through what are known as ‘compromise agreements’.

Compromise agreements This type of agreement is provided for by the Employment Relations Act 1999, and is useful when the parties have already reached agreement, or where one of the parties refuses to reach a settlement without further legal assistance or advice. There may indeed be no ongoing disagreement, but the parties, having reached an agreement, wish it to be set out in legal form. A compromise agreement can resolve issues in a legally binding document that a tribunal has jurisdiction to rule on. Compromise agreements are legally binding agreements which set out the terms on which a settlement surrounding the termination of a contract of employment has been reached between an employer and an employee. Their main purpose is to resolve disputes that an Employment Tribunal would otherwise have jurisdiction to determine. In this regard they serve two basic purposes: •

They are provided specifically to encourage the parties to reach a binding resolution of a dispute without recourse to law.

•

They are a means of finalising matters; once a compromise agreement has been entered into, the parties to it are thereafter prevented from taking any further legal action on the specific matters covered by the compromise agreement.

Employment Tribunals cannot consider a claim that has been settled by means of a properly constituted compromise agreement. However, this applies only to the types of compromise agreement that meet the criteria set out below. Parliament, through employment law, gives employees protection whilst in employment, including the right to enforce their rights at an Employment


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Tribunal. Employers are not able to buy this right from employees, nor are employees entitled to sell it, therefore any agreement that purported to do so would be unenforceable unless it was in the form of a compromise agreement i.e. the method laid down by parliament. An employer and employee can only reach an agreement to exclude a worker going to an Employment Tribunal in two ways: •

By a COT3 settlement brokered by ACAS

•

By a valid compromise agreement.

All other forms of agreement are invalid if they seek to preclude the employee from pursuing a claim at Employment Tribunal. A compromise agreement might be useful in the following circumstances: •

An employee claiming racial discrimination is prepared to accept an apology and a payment rather than go to law.

•

Where two companies merge requiring only one sales director. As a result one of the sales directors agrees to leave with an enhanced redundancy payment.

•

An employee resigns because of incompatibility with their supervisor. The employer agrees to make a cash settlement rather than face a possible claim in the Employment Tribunal.

In each case the employer wishes to ensure that the matter is settled permanently and therefore a subsequent claim to an Employment Tribunal cannot arise.

Requirements of a compromise agreement To comply with the law a compromise agreement must meet the following requirements: •

The agreement must be set out in writing.

•

It must relate to one possible set of tribunal proceedings. It can, however, cover any issue raised in that complaint as long as they are matters over which the tribunal has jurisdiction.

Before signing a compromise agreement, an employee must have been advised by an independent qualified person about the content of the agreement and its full effects, in fact the agreement must state that this has happened, naming the adviser involved. In particular, the employee must be advised of the effect of


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the agreement on their right to pursue the relevant matter at any subsequent Employment Tribunal. A qualified person may be: •

A solicitor or barrister or authorised advocate;

•

A trade union official, certified in writing by the union as being competent to give advice;

•

An advice centre worker who is appropriately certified and authorised by the centre.

Note ‘authorised’ means a fellow of the Institute of Legal Executives, so long as they are employed by a solicitors’ practice and supervised by a solicitor when giving advice. The following aspects of any agreement are also essential: •

The adviser must be named in the agreement.

•

The adviser must be adequately insured against giving improper advice.

•

The agreement must state that all the conditions imposed by statute have been met.

Independence of adviser Any named adviser must clearly be independent. This means that a solicitor who is acting for both parties may not be used, nor may the employer’s solicitor. It can also be argued that a solicitor drawing up a compromise agreement for an employee is not acting independently if their fee is to be paid by the employer, although payment made by the employer, or an agreement to cover an agreed sum, is not unusual. Employers must be careful to ensure that nothing said during ‘negotiations’ covering the ending of an employment contract can come back to haunt them. Matters are all well and good where the employee accepts the proposed agreement, but the situation can arise where he or she listens to what the employer has to say, and then decides against taking up the offer. The employer may by then have said a number of things about the employee’s future with the organization – or lack of it – that they wish had not been said. It is sensible therefore to ensure that all discussions regarding the possibility of entering into a compromise agreement be conducted on a ‘no prejudice’ basis. This should ensure that any comments or proposals made will not subsequently be used against the employer. There are some exceptions to this rule, however, and an employer


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concerned about this should first seek advice from a qualified employment adviser before proceeding.

The conclusion of a fixed term contract A ‘fixed term employee’ is one who works under a fixed term contract. i.e. an employment contract which will terminate: •

On the expiry of a specific term; or

•

On the completion of a particular task; or

•

On the occurrence or non-occurrence of any specific event other than the attainment by the employee of any normal and bona fide retiring age in the establishment for an employee holding the position held by the employee.

For the purposes of unfair dismissal and redundancy law an employee is dismissed if he or she is employed under a contract for a fixed term and that term expires without being renewed. Such an employee can therefore bring a complaint of unfair dismissal or claim redundancy in the same way as a permanent employee. All ‘fixed term employees’ are given the same protection at the end of their contracts as permanent employees and should be treated as such.

Dismissals with notice and summary dismissals The Employment Rights Act 1996 defines dismissal: 1.

For the purposes of this Part (of the Act) an employee is dismissed by his (sic) employer if (and subject to sub section (2) and section 96, only if): •

the contract under which he is employed is terminated by the employer (whether with or without notice),

•

he is employed under a limited term contract and that contract terminates by virtue of the limiting event without being renewed under the same contract, or

•

the employee terminates the contract under which he is employed (with or without notice) in circumstances in which he is entitled to terminate it without notice by reason of the employer’s conduct.


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2.

An employee shall be taken to be dismissed by his employer for the purposes of this Part if: •

the employer gives notice to the employee to terminate his contract of employment, and

•

at a time within the period of that notice the employee gives notice to the employer to terminate the contract of employment on a date earlier than the date on which the employer notice is due to expire;

and the reason for the dismissal is to be taken to be the reason for which the employer’s notice is given.

Certain employees are disqualified from the right to claim unfair dismissal These are: •

Workers who fail to satisfy the status of ‘employee’ (as set out in Chapter 2). •

Employees who have not worked for a continuous period of one year.

•

Share fishermen.

•

The police and prison officers and members of the armed forces.

•

Certain crown employees.

•

Employees reaching retirement age: to claim, employees must not have passed the ‘normal retiring age’ for employees in their position; or where there is no normal retiring age, must not have passed their 65th birthday.

•

Workers who at the time of their dismissal are taking industrial action which has lasted more than eight weeks and where there has been no selective dismissal or engagement of those taking the action.

•

Those employees covered by a disciplinary procedure voluntarily agreed between employers and an independent trade union, where the Secretary of State has designated it to apply instead of the Statutory Scheme.


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•

Illegal contracts of employment entered into to do an act which is unlawful are, as a result of their illegality, unenforceable.

•

Where a settlement of the claim has been agreed with the involvement of an ACAS Conciliation Officer and the employee has agreed to withdraw his/her complaint through entering into a valid compromise agreement.

The Employment Rights Act 1996 s.136 (1)(a) states that: An employee shall be treated as dismissed by his employer if, but only if: •

the contract under which he is employed by the employer is terminated by the employer, whether it is terminated by notice or without notice.

In determining the fairness or otherwise of a dismissal we must again refer to the Employment Rights Act 1996 Section 98 (1) which states that: 1.

In determining for the purposes of this Part whether the dismissal of an employee is fair or unfair, it is for the employer to show: •

the reason (or if more than one, the principle reason) for the dismissal, and

•

that it is either a reason falling with subsection (2) or some other substantial reason of a kind such as to justify the dismissal of an employee holding the position which the employee held.

2.

A reason falls within this subsection if it: •

relates to the capability or qualifications of the employee for performing work of the kind which he was employed by the employer to do,

•

relates to the conduct of the employee,

•

is that the employee was redundant, or

•

that the employee could not continue to work in the position without contravention (either on his part or that of his employer) of a duty or restriction imposed by or under an enactment.

3.

In subsection(2)(a): •

‘capability’, in relation to an employee, means his capability assessed by reference to skill, aptitude, health or any other physical or mental quality, and

•

‘qualifications’, in relation to an employee, means any degree, diploma or other academic, technical or professional qualification relevant to the position which he held.


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If the dismissing employer cannot justify to a tribunal’s satisfaction that the dismissal in question does indeed fall under one of the headings set out in the ERA i.e. capability, conduct, redundancy, contravention, and what lawyers call Some Other Substantial Reason (SOSR), then that is the end of the matter. The dismissal in question will be ruled as unfair, and the tribunal will proceed to consider the matter of compensation.

Dismissals which are deemed to be automatically unfair include: •

Dismissals for trade union membership or activity, or a refusal to join a trade union.

•

Dismissal on the grounds of pregnancy or childbirth.

•

Certain health and safety reasons – particularly where the dismissed employee was an approved health and safety representative.

•

A refusal to work in excess of the hours stipulated in the Working Time Directive.

•

Asserting a statutory right.

•

Making a ‘protected disclosure’.

•

Taking leave for family reasons – these include pregnancy, childbirth or maternity reason and parental leave.

Note: The above reasons do not require a qualifying period of one year’s service before they apply to employees. They apply from the first day of employment. The Employment Act 2002 (section 34) inserted a new section 98A into the ERA. This new clause (S.98A(10) provides that, where an employee has been dismissed in circumstances in which an applicable Disciplinary and Disputes Procedure has not been completed, and such non completion is due wholly or mainly attributable to the failure of the employer to comply with the requirements of the DDP, the employee will be treated as having been unfairly dismissed. The insertion of this new section effectively created a new category of automatically unfair dismissals. i.e. those where the DDP has not been followed by the employer when carrying out the dismissal. Having established a fair reason to dismiss an employee under the ERA, the determination of the question as to whether the employment was ended fairly or unfairly, having regard to the reason shown by the employer: •

Depends on whether in the circumstances (including the size and administrative resources of the employer’s undertaking) the employer


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acted reasonably or unreasonably in treating it as a sufficient reason for dismissing the employee, and •

Shall be determined in accordance with equity and the substantial merits of the case.

[Section 98 (4) Employment Rights Act 1996] The ERA does not define ‘reasonable or unreasonable’, it merely sets a subjective motivation that must first be met by the employer before the question of fairness or otherwise comes to be considered. The test of ‘fairness’, as the Act says, ‘shall be determined in accordance with equity and the substantial merits of the case’, i.e. each case will revolve around the circumstances, facts and events that occurred leading up to the dismissal in question. Note: Chapter 4 covers the steps that must be followed by an employer to ensure that the Disputes Resolution Regulations brought in by the Employment Act 2002 are followed in every respect. Managers who are involved in the dismissal of any protected employee must remember that a dismissal may be unfair even where the employer has stuck rigidly to the procedures. This is because tribunals will always look at whether or not the employer has a fair reason for dismissal, and behaved reasonably in the way they went about the dismissal. The tribunal will refer to the ACAS Code of Practice on Disciplinary and Grievance Procedures, as part of their deliberations as to whether or not the employer behaved in a reasonable manner. Acting reasonably can be summarised through the following key principles that define ‘reasonable’ behaviour: •

Procedures should always be used to encourage employees to improve, where possible, rather than just as a way of imposing punishment.

•

An employer should never dismiss an employee for a first disciplinary offence unless it is a case of gross misconduct.

•

An employer should always give the employee an explanation for any disciplinary action taken against them and make sure that the employee always knows what improvement is expected of them.

•

As set out above, the ERA provides for the following reasons one of which must be established for a fair dismissal to occur: –

Capability or qualifications of the employee for performing work of the kind which he was employed by the employer to do,

–

Conduct of the employee,


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–

That the employee was redundant, or

–

That the employee could not continue to work in the position without contravention (either on his part or that of his employer) of a duty or restriction imposed by or under an enactment.

To expand on these reasons:

Capability dismissals ‘Capability’ is defined in the Employment Rights Act 1996 as referring to: •

Skill

•

Aptitude

•

Health, or

•

Any physical or mental quality.

When relying on this reason employers must demonstrate that the employee’s capability or qualifications were the reason, or principle reason, for the dismissal.

Skill and aptitude Whether these attributes are present in an employee’s performance goes to the question of an employee’s competence, or incompetence. In practice, a distinction is usually drawn between cases involving incapability due to the employee’s incompetence, or inability to grasp and meet the standards required for the proper performance of the duties involved, and ill health. For an employer to dismiss an employee on the grounds of their incompetence, or inability to meet the required standards, they must have evidence that the employee was in fact incapable of carrying out the job properly. Often such evidence is apparent, and acted on by the employer in the probationary, or early stages of employment, leading to dismissal before the required year’s qualifying service has been met necessary to mount a claim of unfair dismissal. However, in certain instances – either through over promotion, advancing years or other life circumstances, the incapability may arise after a period of satisfactory performance. Clearly a distinction must be drawn between genuine incompetence, laziness, dilatory behaviour, and incapability brought about for


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other reasons. Only a thorough investigation prior to any action, coupled with training, mentoring and an ongoing review will determine whether the problem can be overcome. In the case of over promotion, consideration will be required to determine if an alternative position is available which the employee can be transferred back into. In the case of incompetence, laziness or poor attitude, then the disciplinary procedure must be invoked. Any disciplinary action must conclude with: •

The employee being aware of the expected standards of performance they must achieve;

•

Any training and support required to achieve the standards being offered to the employee;

•

A specific time period identified at which time the employee’s performance will be reviewed again;

•

The identification of a mentor to whom the employee can turn if they require any ongoing assistance or advice.

Only after these steps have been followed would dismissal on the grounds of incompetence be considered fair. As with all dismissals the Three Step procedure required by the Disputes Resolution Regulations introduced by the Employment Act 2002 would need to have been followed prior to any dismissal occurring. It is not for an Employment Tribunal to decide whether or not an employee was capable of carrying out their job. Provided the employer has formed a genuine belief in the employee’s incapability, and this belief is founded on investigation and evidence of poor performance, then the tribunal will, all other factors being equal, find for the employer should their decision be challenged.

Ill health dismissals Ill health dismissals are the most frequently encountered types of capability dismissals. Dismissal on the grounds of ill health is one of the most difficult of dismissals for management to get right. The advent of the Disability Discrimination Act 1995 means that great care must be taken to ensure that any dismissal does not fall foul of the specific requirements laid on employers by the DDA. Ill health itself breaks down into two categories, frequent short-term bouts of ill health, and serious long-term absence caused by ill health. When considering claims of unfair dismissal on the grounds of ill health Employment Tribunals


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are not particularly interested in the past events. What they concentrate their attention on is whether or not the employer has taken reasonable steps to ensure that they understand the nature of the employee’s ill health and, as importantly, what is likely to happen in the future. Short-term absence has been covered thoroughly in the section dealing with disciplinary action on pages 60-63 entitled ‘frequent short-term absence’. Where, after following the steps laid down in this section of the report, the frequency of absence does not reduce to acceptable levels, then dismissal may be the only action left for the employer to take. Long-term absence on the grounds of ill health is another matter entirely. Even where the absence extended into many months in length the crucial question is, what was the status of the employee’s health at the time the decision to dismiss was made? Was a return to work imminent or not? The primary test for a tribunal in determining whether or not an ill health dismissal was fair was established in the case of Spencer v Paragon Wallpapers Ltd 1976 EAT – the Employment Appeal Tribunal stated that: ‘The basic question which has to be determined in every case (of long-term absence) is whether in all the circumstances the employer can be expected to wait any longer (for the employee to return to work), and if so how much longer?’ The relevant circumstances to take into account include ‘the nature of the illness, the likely length of the continuing absence, and the need of the employers to have the work done which the employee was engaged to do.’ In order to answer these basic questions an employer must carry out such investigation into the employee’s absence, and the circumstances surrounding it, as is proper. The employer should consult fully with the employee concerned, in person whenever possible, and through correspondence where this is not possible, to establish the employee’s circumstances and, where known, their likely return to work date. Secondly, the employer should seek precise medical information on the employee’s health – bearing in mind the requirements of the Medical Reports Act 1985. An employee cannot be forced to undergo a medical examination, unless their contract of employment specifically requires this. Nor can an employee be forced to submit their medical records to the employer; in the event that any dismissal is challenged at Employment Tribunal, the employer must have records demonstrating their attempts to obtain medical information regarding the employee’s health circumstances, in particular their likely return to work date.


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The employee should be aware that the employer is contemplating dismissal if they do not return to work within a reasonable period of time. The issue is not so much one of discipline, but simply one of, can the employer continue to operate their business efficiently in the absence of the employee? The employer must ensure that the questions asked of the medical practitioner are precise: in particular when, if ever, is the employee likely to return to work? If the employee blocks, or prevents the employer obtaining precise medical information upon which a considered and reasonable decision regarding their absence can be based, then the employer should write to the employee explaining that a failure to allow the employer access to this essential medical information will force the employer to make a decision on the employee’s future employment solely on the length of the absence. Any such letter should be sent by recorded delivery to ensure that evidence of its despatch will be available if subsequently required. If the medical opinion states that the employee is unlikely to return to work in the near future, and the employer is satisfied that its business interests require that the job the employee was employed to carry out is essential, it will normally be fair to dismiss. It must be stressed, however, that each case of dismissal on the grounds of ill health must be considered on its own merits. An employer should not ignore the possibility of providing alternative employment opportunities to an employee who is absent on the grounds of ill health. Questions should be asked as to whether alternative working arrangements can be made, or modifications made to the work or job concerned, which would allow the employee to return to work on a part-time basis, if not full-time. As always, the test of ‘reasonableness’ will apply to such dismissals as to all others.

Qualification dismissals Qualification is defined by the ERA as meaning: •

Any degree

•

Diploma or

•

Other academic, technical or professional qualification relevant to the position held by the employee.

‘Qualifications’, in relation to an employee, mean any degrees, diplomas or other academic, technical or professional qualifications relevant.


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There is little case law to guide employers on the matter of an employee’s lack of required qualifications. Where the qualification is an essential feature required for the proper performance of the job, and the employee is discovered not to have the requisite qualification, then the matter is straightforward. Some employers choose to dismiss under the heading of misconduct having been misled, or lied to by the employee concerned. If, however, following investigation, and after giving the employee the normal right of reply and appeal the decision is made to dismiss, it is unlikely that an employee who has misled or lied to an employer with regard to holding a qualification could mount a successful claim of unfair dismissal.

Conduct dismissals This type of breach is perhaps the easiest of all to deal with. It is often specific, easily identified and quickest to resolve. The offending behaviour either did, or did not occur and an investigation usually quickly identifies the facts. It covers, as the name implies, the conduct or behaviour of employees, both against the written disciplinary rules of the organization and the standard norms of acceptable behaviour in the industry and society. If the behaviour can be said to have a detrimental effect on the smooth running, industrial relations, harmony, image or financial performance of the organization, then it can be considered behaviour that must be addressed by management. Where the behaviour continues after training in the standards required, counselling and warnings which clearly state how seriously the management view the offending behaviour, or is so outrageous as to be considered ‘gross’, then it may be that there is no alternative left to management but to end the contract, with notice, unless the breach is considered as ‘gross’ There is no onus of proof on employers if the dismissal is challenged at Employment Tribunal. If the employer cites conduct as the reason for dismissal, then it will be a potentially fair dismissal and the case will be determined on the equity and substantial merits of the case. Each case will be looked at from the perspective of its own facts and circumstances, and in coming to a decision the Employment Tribunal must consider: 1.

Whether the employer believed that the employee had been guilty of the misconduct when they dismissed him;

2.

If so, were there reasonable grounds for holding this belief? And,


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3.

Did the employer carry out as much investigation as was reasonable in the circumstances before dismissing the employee? (British Home Stores v Burchell 1980 EAT)

Case law has established that the Employment Tribunal may not substitute its own views for that of the employer when considering whether it was reasonable to dismiss the employee, rather than issuing a warning, or applying some other penalty. However, if the tribunal find that the employer’s actions in treating the matter as one for which dismissal was the appropriate penalty was outside of the ‘bands of reasonable responses’ open to an employer faced with similar facts and circumstances, then the dismissal will be unfair. Of crucial importance following 1st October 2004, and the introduction of the Disputes Resolution Regulations, brought into being by the Employment Act 2002, is that the employer is seen to have carried out as a minimum, the ‘Standard Three Step’ disciplinary procedure, or ‘Modified Two Step Procedure’, as appropriate. Failure to comply with the Regulations will lead to an automatic finding of unfair dismissal, irrespective of the circumstances involved.

Redundancy dismissals Redundancy dismissals fall into a category of their own. They are not a disciplinary dismissal, although the disciplinary record of an employee may be considered as part of any redundancy selection process. Redundancy is ‘prima facie’ a fair reason for dismissal, but it must meet the ‘redundancy tests’ – the job the employee is employed to do must have ceased or diminished and any redundancy must conform to essential procedures on selection, consultation etc. Any decision to make employees redundant must be based on objective criteria for selection, and all employees selected for redundancy must be fairly selected using a published criteria. Being made redundant is sometimes used as a euphemism for being dismissed. This is wrong. Neither in law nor in the English language is ‘redundancy’ defined as losing a job or being sacked. The legal definition in law is quite precise. To be lawful, a redundancy programme must meet either of the two definitions set out below. The employer must: a.

Have ceased, or intend to cease, to carry on the business for the purposes of which the employee was employed, or has ceased, or


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intends to cease, to carry on that business in the place where the employee was so employed, OR b.

The requirements of that business for employees to carry out work of a particular kind, or for employees to carry out work of a particular kind in the place where the employee was employed, have ceased or diminished or are expected to cease or diminish.

In summary therefore, an employee is redundant if, and only if, he/she is dismissed because the employer ceases trading altogether, or because the employer closes the particular workplace, or because the requirements of the business for employees to carry out work of a particular kind have ceased or diminished. There is a legal obligation upon all employers irrespective of size to follow a fair procedure when considering redundancies. Where these procedural steps are not followed, the employee will be in a position to successfully claim unfair dismissal. The most important of these steps involves consultation, which must take place both before and during the redundancy process.

Redundancy consultation The Collective Redundancies and Transfer of Undertakings (Protection of Employment) (Amendment) Regulations 1999, which came into force on 28th July 1999 sets out the minimum requirements for consultation. Genuine consultation involves entering into a discussion with an open mind and with a willingness to be persuaded, before commencing the actual redundancy exercise. There is a legal requirement to consult with individual employees, and in the case of larger scale redundancies with trade unions or elected employee representatives. Employers who recognise a trade union must consult that union, and may not choose instead to consult elected representatives. Detailed requirements are laid down for electing employee representatives in cases where the employer does not recognise a union. Consultation must take place with the representatives of all the employees who may be affected by any redundancy and not just those whom the employer proposes to make redundant. Representatives are to be given specific rights to time off and training. The remedies available to employees and their representatives in cases where employers fail to comply with the information and consultation provisions are simplified and strengthened.


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Definition of collective redundancy The duty to consult collectively arises where the employer is proposing to dismiss as redundant 20 or more employees at one establishment within a period of 90 days or less. Where this condition is satisfied, the employer must consult all the appropriate representatives of any of the employees who may be affected. The duty to inform and consult representatives only applies where the employer proposes to make at least 20 employees redundant at one establishment within a period of 90 days.

Timing of redundancy consultation Consultation with the appropriate representatives must begin ‘in good time’, and must in any event begin: •

At least 90 days before the first dismissal takes effect if 100 or more redundancies are proposed at one establishment within a 90-day period, and

•

Otherwise, at least 30 days before the first dismissal takes effect.

In determining how many employees an employer is proposing to make redundant no account may be taken of any employees in respect of whom consultation has already begun.

Meaning of ‘establishment’ The minimum periods for consultation depend on a given number of employees being employed at any one establishment being made redundant. The definition of ‘establishment’ is also relevant in determining whether consultation has to take place at all. The question here that frequently comes up is whether a multisited enterprise is to be regarded as one establishment. There is no statutory definition of establishment, so tribunals tend to adopt a common sense approach when faced with this question.

Appropriate representatives The employer is under a duty to consult with the ‘appropriate representatives’ of any of the employees who may be affected by the proposed dismissals or by measures taken in connection with those dismissals. This includes employees who, although not under threat of dismissal, might be directly or indirectly affected


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by a redundancy situation. The definition of appropriate representatives is defined as follows: •

If the employees are of a description in respect of which the employer recognises an independent trade union, the representatives of the trade union, or

•

If the employees are not of a description in respect of which the employer recognises an independent trade union, whichever of the following employee representatives the employer chooses – employee representatives appointed or elected by the affected employees for purposes other than collective redundancy consultation, who (having regard to the purposes for and the method by which they were appointed or elected) have authority from those employees to receive information and to be consulted about the proposed dismissals on their behalf, or –

•

Employee representatives elected by the affected employees for the purposes of redundancy consultation.

Disclosure of information The employer should provide the appropriate representatives with sufficient information to play a useful and constructive part in the consultation process. The employer is required to provide the following information in writing to the appropriate representatives as a minimum: •

The reasons for the redundancy proposals;

•

The numbers and descriptions of employees it is proposed to dismiss as redundant;

•

The total number of employees of that description employed at the establishment in question;

•

The proposed method of selecting the employees who may be dismissed;

•

The proposed method of carrying out the dismissals, including the period over which the dismissals are to take effect; and

•

The proposed method of calculating the amount of any redundancy payments to be made (other than statutory redundancy pay) to employees who may be dismissed.

The information should be either given to the appropriate representatives, or posted to an address notified by them to the employer or, in the case of trade


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union representatives, posted to the main or head office of the union. The information should be given in good time during the course of the consultations.

Remedies If an Employment Tribunal finds that an employer has acted in breach of the requirements it must make a declaration to that effect and may make a protective award. A protective award is an award of pay to the employees affected by the failure to consult properly. The 1999 Regulations clarify the categories of person who may bring a complaint. A complaint may now be brought: •

In the case of a failure relating to the election of employee representatives, by any of the affected employees or by any of the employees who have been made redundant. In these circumstances it is for the employer to show that the election requirements have been satisfied;

•

In the case of any other failure relating to employee representatives, by any of the employee representatives to whom the failure related;

•

In the case of failure relating to representatives of a trade union, by the trade union in any other case, by any of the affected employees or by any of the employees who have been dismissed as redundant.

The protective award will be made for a ‘protected period’ beginning with the date on which the first of the dismissals takes effect, or the date of the award (whichever is the earlier), and continuing for however long the tribunal decide is ‘just and equitable’.

Small-scale redundancies Where an employer proposes to make fewer than 20 people redundant within a period of 90 days, the employer must embark upon consultation with individual employees. The employer should outline to any affected employee what the proposals are, and should give the employee an opportunity to consider the situation and come back to the employer at a later date with any comments, suggestions or ideas that the employee may have. The employer should be seen to consider the employee’s representations. To that end, at the commencement of the consultation process, the employer should provide the same information to employees as that required to be given to employee representatives as set out above. This can be in the form of a fact sheet handed to all of the employees who could possibly be affected by the redundancy.


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Selection for redundancy Unfair selection for redundancy is one of the most common types of claim made to an Employment Tribunal. At the outset of the programme the employer should establish fair and reasonable redundancy selection criteria. The criteria should not depend solely upon the opinion of the persons making the selection, but should be able to be objectively checked against such measures as attendance record, efficiency at the job, skill levels, experience, service length, attitude, flexibility etc. The employer must ensure that any selection for redundancy is made fairly in accordance with defined criteria. The employer must make their findings known to the employee/s concerned and give the employee the opportunity to challenge the results if required. The employer must also consider any representations made by the employee (or his or her representative) in respect of such findings, and any resultant selection. These representations will be a part of the consultation process, and detailed records should be kept of all discussions and consultations in case of any future challenge made by the employee/s to an employment tribunal. It is important that the following steps can be demonstrated as having been followed in the event of any claim of unfair dismissal arising. •

Consultation and information. As much notice as possible should be given to any individual/s who could be made redundant.

•

They should be made expressly aware when consulting them that no decision has yet been taken as to whether they will be selected for redundancy.

•

Voluntary redundancies can be considered where appropriate before compulsory redundancy applies.

•

Objective selection criteria should be drawn up, explained and used fairly and without bias.

•

A reasonable timetable should be worked out and explained.

•

Proper notice of dismissal – including notice periods – must be given even though the dismissal is by reason of redundancy.

•

The possibility of alternative employment must be considered.

•

The possibility of appeal against selection should be considered.

•

Wherever possible help should be provided in finding a new job.

•

Full details of redundancy pay should be provided.


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Alternative employment The employer should look to see whether instead of dismissing an employee, he or she could be offered alternative employment. This should include consideration of jobs held by employees with less service than the employee who is to be made redundant. This is a concept known as ‘bumping’. Where the employee is offered alternative employment on terms and conditions different from the original contract, then he or she is entitled to a four-week trial period in the new job. If, during the trial period, the employee for whatever reason terminates the contract, he or she will still be regarded as having been dismissed because of redundancy.

Time off work An employee who has been given notice of dismissal for redundancy may seek a reasonable amount of paid time off work in order to look for another job, or to make arrangements for re-training. This right depends upon a qualifying period of two years’ continuous employment having been attained by the employee.

Redundancy pay An employee who has completed two years’ continuous service and who is dismissed for reasons of redundancy is entitled to a Statutory Redundancy payment. The scales on which such payments are based are readily available from ACAS or other government sources.

Dismissal due to contravention of a duty or restriction Dismissal on the grounds of a contravention of a statutory duty means that ‘the employee could not continue to work in the position which he/she held without contravention (on their part or the part of their employer) of a duty or restriction imposed by or under an enactment.’ The most common example of this is where a driver loses his/her driving licence, and the job consists mainly or wholly in driving. This does not mean that the employer can automatically dismiss such an employee, there will still be a requirement that the ‘Three Step’ DDP be followed, and all of the circumstances. i.e. length of the licence loss, possibility of alternative work etc, be considered before the decision to dismiss is arrived at.


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Dismissal for some other substantial reason Dismissal for some other substantial reason (SOSR) This is a catch-all category which covers such matters as the non renewal of a fixed term contract; a reorganization that does not lead to redundancy, and other unspecific reasons. It is designed to cover dismissals which are considered necessary by an employer, but which do not fall under the headings set out above in this chapter. If an employer can show that the reason for the dismissal of an employee was for a ‘substantial reason of a kind such as to justify the dismissal of an employee holding the position which that employee held’ then the dismissal can be considered as potentially fair. Whether or not the dismissal is actually fair, will turn on the specific circumstances related to the actual dismissal, taking into account the size and administrative resources of the employing organization. As with all other dismissals, the employer will have been expected to follow a ‘reasonable’ procedure which meets the minimum requirements of statute. To such dismissals can be applied the late Lord Justice Denning’s maxim ‘the elephant test’; “Whilst an elephant may be described to you if you have never seen one, there is no doubt that you will know one when you see it!” SOSR reasons for dismissals fall into this category.

Frustration of contract Frustration of an employment contract occurs when an event arises which prevents the continued operation or performance of the contract which neither party envisaged when drawing up the contract terms. Such events can include (but are not restricted to) the death of either party, a major calamity, or catastrophe such as an earthquake, or other natural disaster or other similar happening that is outside of the control of the parties, and whose happening prevents the fulfilment or proper operation of the contract of employment. Frustration is a well-known concept in contract law, and as such has become a part of employment contract law.

Constructive dismissal The term ‘Constructive Dismissal’ has been coined to cover the circumstances when an employee believes that their employer has unilaterally altered their terms of contract in a significant way and, in so doing destroyed their contract of employment.


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Any unilateral change to any fundamental part of a contract, such as pay, hours, holidays, location etc can lead to an employee bringing a claim at Employment Tribunal that they have been constructively dismissed. Constructive Dismissal occurs when the actions of the employer have been so outrageous as to enable the employee to conclude that the contract of employment is over – destroyed by the employer’s conduct or actions, thus entitling the employee to turn on their heel and walk away without further notice. This risk should not however deter employers from seeking to implement essential changes to any contract of employment. What they must first do, however, in any attempt to make changes, is to consult extensively with all employees who could be affected by any proposed change. Unless the employees concerned are covered by a collective agreement, and the contract statement makes this clear, consultation must take place with each individual employee who could be affected by any change. The aim of the consultation should be to reach agreement – in writing – to any proposed changes. Where agreement is not possible, this does not mean that the change cannot be implemented. What it does mean is that the employer must give notice to the employee/s concerned, that their existing contract will be brought to an end, and that re-employment – with unbroken service – on the terms of the new revised contract will be offered to them at the contract’s conclusion. Whilst employers do not have the right to unilaterally change terms and conditions of employment, they do have the right to give notice to end the contract. Provided that they give notice to employees, which is at least as long as the notice period, the employees are entitled to under the terms of their contract. Any employment so ended will be deemed to have been terminated for SOSR (Some Other Substantial Reason). In effect, the employee’s contract on the old terms will have come to an end and they will be offered continued employment on the new contract terms. Provided the consultation has been substantial, the reasons for the change significant and economically justified, and the employees given every opportunity to comment and suggest alterations that would achieve the employer’s aims, there is every chance that any claim for constructive dismissal would fail. In the circumstances where the employee does not accept continued employment on the revised contract terms, they will not be able to claim that their dismissal was made on the grounds of redundancy. The job will still exist, albeit on revised terms, and as such they will not meet the necessary qualification to entitle them to redundancy pay.


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What is important in this process is that trust and confidence are maintained between the parties. This factor is crucial in the maintenance of any ongoing contractual relationship, without it no contract can survive. Trust and confidence are based on mutual respect and an observance of reasonable behaviour by both parties.

Wrongful dismissal Wrongful dismissal is a common law concept. It describes any dismissal which has occurred contrary to the terms of the contract. Any gross misconduct dismissal, which by its nature is dismissal without notice, is prima facie a ‘wrongful’ dismissal until the ‘gross’ aspect of the breach has been proven. It was ‘wrongful’ initially because the contract was ended contrary to its notice entitlement terms. Unfair dismissal on the other hand is a statutory term; a concept of dismissal defined by statute. Prior to the introduction of legislation defining the concept of ‘unfair dismissal’ the only legally arguable aspect of dismissal was wrongful. Where an ex-employee is able to argue that the terms of their contract were not met at the time of termination then it is open to them to claim that their dismissal was wrongful. Prior to 1944 Employment Tribunals had no jurisdiction to hear claims of wrongful dismissal, as they were the province of the courts. This was changed in 1994 with tribunals being given the power to hear claims of wrongful dismissal, their powers to make awards are, however, limited to a maximum of £25,000. Again, this figure is subject to annual review. There is no limit to the damages that can be awarded for wrongful dismissal by the courts, whilst Employment Tribunal awards are subject to maximums, usually reviewed annually. The damages that can be awarded in cases of wrongful dismissal relate directly to the loss suffered by the employee who successfully argues that their dismissal was wrongful. Claims of wrongful dismissal are of most value to: •

Those on fixed terms contracts ended within the term.

•

Highly paid employees where the statutory maximum at ET means they would lose out if they pursued their claim in this court.

•

Employees excluded from bringing unfair dismissal claims.


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Authority to dismiss Terminating a contract of employment is ending an agreement that had been freely entered into by the parties. Even where short-term employees are involved this is a significant action to take. It is important therefore that those managers with the authority to dismiss are: •

Of a senior rank within the organization.

•

Identified as having the authority to dismiss.

Also, that they are trained to understand the implications of their actions and be fully conversant with the financial risks and implications involved, and all of the procedures that they must follow if they are to be seen to have dismissed ‘fairly’ and in accordance with the terms of the contract/s of employment of the employee/s concerned. The ending of a contract of employment is never a step to be taken lightly or without first conducting a ‘Risk Assessment’. Such an assessment will include exploring whether the employee is a ‘protected’ employee i.e. one with over 12 months service, or one where the dismissal is in any way associated with sex, race, maternity or the exercise of a statutory right. Where any doubt exists on the proper way to proceed, or whether or not the employee could successfully bring a claim against the business, then professional advice should be sought before proceeding further. Managers or directors should never dismiss in haste. Wherever doubt exists, then action should be suspended until professional advice and clarification on the correct course of action has first been obtained.


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Chapter 8 Grievances Grievances: an introduction ...............................................................95 The standard ‘three step’ grievance procedure ..............................96 Definition of a grievance.....................................................................97 The ‘modified’ two step grievance procedure ..................................98 Overlapping disputes ........................................................................101 Grievance procedures and their impact on employment tribunal applications ...................................................102

Chapter 8 Grievances

Grievances: an introduction Grievances are issues or problems which employees have about their job, or any workplace issue that affects them. It has long been the established practice for employers to provide a mechanism which enabled employees to raise any such issues or problems for discussion and resolution informally with their immediate management, before proceeding, where necessary, to involve more senior management. This right has now become a statutory right with the passing into law of the Employment Act 2002 and the requirements of the Disputes Resolution Regulations. These Regulations contain two statutory grievance procedures (GPs) a three stage ‘standard’ procedure, and a two stage ‘modified’ procedure. The statutory GPs were introduced to ensure that employees’ workplace concerns are raised, discussed and resolved before the parties become entangled in tribunal litigation. Through the exercise of these simple steps the government hopes the high volume of Employment Tribunal cases will be significantly reduced. ACAS has long advised that employees should first raise any problem that they have regarding the workplace informally with their immediate manager or supervisor. This is fine providing that the problem that the employee is experiencing is not with the manager or supervisor and the way in which they are managed. In such instances to raise the issue with the manager or supervisor is clearly inappropriate. ACAS’s advice has always been that if informal discussion does not resolve the issue, then the matter should move to a more formal level with the grievance being referred upward in the management chain in order to seek a resolution. Many employers have established separate grievance procedures to deal with complaints of sexual harassment, or racial discrimination, because of the high risk of litigation these issues can bring. There is no requirement in the Dispute Resolution Regulations for such separation, but it is a step worth considering for large employing organizations, where the harasser may be the immediate


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supervisor of the worker involved, and where the standard grievance procedure would be wholly inappropriate to deal with the situation. It is to be recommended that any complaint of a sexual or racial matter be raised directly in writing at director or senior manager level, bypassing the junior ranks of management, who may be involved in any standard grievance procedure. It is important to note that the new statutory GPs introduced on 1st October 2004 are not intended to be best practice guides, but minimum legal standards. They provide a minimum platform entitlement given by the legislation to all employees. Employers are free to provide their employees with a more comprehensive system of grievance resolution if they choose, they are not, however, free to provide a system which is less rigorous than the statutory minimum. This process builds on the long established implied contractual entitlement of employees, that their employer take reasonable steps at all times to address issues affecting their job or workplace. A failure to do so could entitle an employee to resign and successfully claim unfair constructive dismissal. In order to ‘give teeth’ to the regulations regarding GPs, the EA 2002 provides that where a statutory GP applies in respect of an employee’s workplace concern, and where an employee presents a complaint to an Employment Tribunal which arises from that concern, the tribunal claim will be inadmissible unless the employee has first sent the complaint to the employer – One Step – and then allowed 28 days to elapse before advancing their complaint to the tribunal. Where an applicable GP has not been completed due to the action of either party, the tribunal has the power to increase or decrease any subsequent award by between 10 and 50% depending on the allocation of fault for the failure.

The standard ‘three step’ grievance procedure This procedure will be initiated by the employee writing a letter to the employer. In response the employer will be required to arrange a meeting to discuss the issue, and to provide an opportunity for the employee to appeal if the meeting fails to resolve the matter viz: Step 1

The employee sets down in writing the nature of the grievance and sends this to the employer.

Step 2

The employer must invite the employee to at least one hearing, at a reasonable time and place at which the alleged grievance can be discussed. The employee must inform the employer what the basis for the grievance is. The employee must make all reasonable efforts


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to attend the meeting. After the meeting the employer must inform the employee of any decision reached, and offer the employee the right of appeal. Step 3

If the employee considers that the grievance has not been satisfactorily resolved, he/she must inform the employer that he/she wishes to appeal against the employer’s decision, or failure to make a decision. Where possible a more senior manager should handle any resultant appeal meeting. After the meeting the employer’s final decision must be communicated to the employee.

Definition of a grievance The Regulations define a grievance as: ‘a complaint by an employee about action/s which his (sic) employer has taken or is contemplating taking in relation to him’. This definition will also cover actions of a third party (such as a fellow employee) in cases where the employer would be vicariously liable for those actions. This definition covers harassment – either racial or sexual, victimisation, bullying etc. The regulations also provide that the GPs apply in relation to any grievance about any action by the employer that could form the basis of a tribunal claim, such as a breach of any employee statutory right or entitlement. The Regulations provide that the standard three-step procedure will apply in cases where an employee is aggrieved about an action taken by his employer and where the employee asserts this was taken wholly or mainly by reason of something other than his/her conduct or capability. The types of actions covered include warnings, either written or verbal, investigatory suspensions and those actions giving rise to constructive dismissals, but will exclude all other dismissals. The purpose here is to deal with all issues that arise, even where they are part of the standard disciplinary procedure, and also require employees to raise any matter which could possibly lead to a claim of constructive dismissal being made against the employer, before proceeding to an Employment Tribunal. The standard three step procedure will apply in all cases where the employee remains in the employ of the employer. It will also apply in most cases where


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the employee is no longer in the employ of the employer. There are, however, some exceptions to this rule. These are where: a)

The employer was not aware of the grievance before the employment ended;

b)

If the employer was aware, the standard grievance procedure had not started, or had not been completed by the time the employment had ended; and

c)

The parties have agreed in writing that the modified, rather than the standard grievance procedure, applies.

The ‘modified’ two step grievance procedure The Regulations established a ‘modified’ two-step procedure: Step 1

The employee sets down in writing the nature of the grievance and sends the complaint to the employer.

Step 2

The employer must then set out his or her response in writing and send it to the employee.

The GPs will not apply where: •

Employment has ended.

•

Neither of the GPs had commenced at that point; and

•

Since the end of the employment it has become not reasonably practicable for the employee to send the One Step letter to initiate either of the proceedings.

•

Nor will there be a requirement for the employee to raise a grievance if the employer has dismissed or is contemplating the dismissal of the employee.

•

There will be no requirement to follow the GP if the employer has taken or is contemplating taking action on the basis of the employee’s conduct or capability as these cases will be covered by the Dismissal and Disciplinary Procedures referred to in Chapter 4.

However, the GPs will apply if the employee feels that the employer is unlawfully discriminating against them by raising conduct or capability issues.


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The parties will be treated as having complied with the GP requirements in cases where: •

The grievance is raised in writing during a dismissal and disciplinary procedure; or

•

The GP is not completed because it was not reasonably practicable so to do, or

•

The grievance has been raised collectively by a trade union or appropriate employee representative.

•

An alternative, collectively agreed disputes resolution procedure exists, and the employee has raised the grievance using that procedure.

•

Where the standard GP would normally apply, but subsequently the employment has ended, and since the ending of the employment it has become not reasonably practicable for one or other of the parties to comply with the remainder of the procedure.

•

The regulations provide for the situation where an employee raises a grievance whilst the disciplinary procedure is ongoing. Where the grievance is raised before the appeal stage of the procedure has been reached, then the regulations will have been complied with. Where the grievance however is raised after the appeal stage, then the Three Step GP must commence anew.

The following steps apply to both GP procedures and Disciplinary and Dismissal Procedures (DDPs): •

Each step and action of the procedures must be taken without reasonable delay.

•

The timing and location of meetings must be reasonable.

•

Meetings must allow both the employee and the employer to explain their case.

•

In the case of an appeal meeting, the employer should so far as is reasonably practicable, be represented by a more senior manager than presided over the first meeting.

•

The employee can choose to be accompanied to the Two Step meeting, and/or Three Step appeal, by either colleague or representative.

•

The role and rights of the representative in GPs is the same as that set out in Chapter 5, under the section The disciplinary hearing, which dealt with DDPs.


99


•

When a disabled employee is involved in a statutory Disputes Resolution Procedure the employer will be required to make ‘reasonable adjustments’ so that the employee is not disadvantaged in any way.

•

If the procedures are not started, or completed satisfactorily, this will have an impact on the outcome of any subsequent tribunal case.

The following exemptions apply to both DDPs and GPs: •

If one party reasonably believes that there is a significant threat, harassment, or

•

It is not practical to go through the procedures within a reasonable period; or

•

Factors beyond the control of either party make it effectively impossible for the procedure to be started or completed. Note: these exemptions are intended to cover both violence, and the threats of violence to either party, or the party’s property, or any person or person’s property.

In any subsequent tribunal case, the tribunal may adjust any award made to the detriment of any party that was found responsible for the procedures not being started or completed because of a significant threat, or unreasonable delay. If the employer, the employee, or the employee’s representative cannot reasonably attend a Two Step or Three Step meeting for a reason that was not reasonably foreseeable at the time that the meeting was arranged, the meeting must be rearranged. However, if either party did not attend a meeting and the failure could have been reasonably foreseen, then neither party will be under any obligation under the statutory procedure. Any subsequent tribunal may, however, attribute responsibility for failure with the commensurate adjustment of any resultant award. If the employee’s representative cannot reasonably attend any meeting, then the employer must propose an alternative date within five days of the originally proposed date. The employer is only obliged to rearrange the meeting on one occasion. If the second meeting falls through for unforeseen reasons, then fault will not be attributed to either party and the procedure will be deemed to have been complied with.


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Overlapping disputes The Employment Act 2002 deals separately with disciplinary and grievance procedures, but often at the workplace there is no clear distinction between the two. The Regulations therefore lay down what is required to be done in the circumstances where the two types of procedure overlap. Examples where overlapping disputes may occur are: •

Where an employer takes disciplinary action against an employee, and this prompts the employee to raise a grievance about the action or another matter, or to resign and complain of constructive dismissal.

•

An employer has multiple disciplinary issues to raise with an employee.

•

An employee may have multiple grievances to raise with the employer.

The Regulations set out that: 1.

Where the action taken by the employer is dismissal (other than constructive dismissal) then the matter does not fall under the statutory GP. The onus is on the employer to initiate workplace discussions under the appropriate DDP.

2.

If the actions taken by the employer is not on the grounds of conduct or capability, then there is no need for the employer to initiate the DDP. Thus if an employee is dissatisfied he or she should raise a grievance in accordance with the GP.

3.

If, however, the action to be taken by the employer is on the grounds of capability or conduct, then the standard Three Step DDP must be followed, and the statutory GP will not normally apply.

4.

However, the GP will apply if the employer has taken, or contemplates taking conduct or capability related disciplinary action, and either the employee believes it is unlawfully discriminatory, or the action is really being taken for reasons other than conduct or capability.

5.

If, however, the employee raises this, or a grievance, before the appeal stage of the DDP has been reached, he or she will be treated as having complied with the requirements of the GP. If the matter is not, however, raised before the DDP appeal stage has been completed, then the GP will be required to commence from One Stage if the required procedures are to be seen to have been complied with.

Whilst most employers separate out their disciplinary and grievance procedures this will not be required for the statutory procedures. Under the Regulations


101


both letters and meetings under the statutory procedures can be multi purpose. So for instance, an employer writing to invite an employee to a Two Step meeting in relation to one disciplinary issue, could use the same letter as the One Step letter in relation to another disciplinary matter.

Grievance procedures and their impact on employment tribunal applications Admissibility Grievances If an employee wishes to submit a claim to an Employment Tribunal based on a grievance with their employer, or ex- employer, he/she must first write a One Step letter and allow 28 days to elapse or the complaint will not be admitted. Once this condition has been met the employee will be able to bring the claim. If the procedures have not been completed, as the result of action or in action on the part of either party, then any resultant award may be adjusted upward or downward as the tribunal considers appropriate. An employee who wishes to present a claim to an Employment Tribunal must do so within a three month period from the date of the act complained of, however the Regulations will allow, in certain circumstances, the time limit to be extended to allow for extra workplace discussions to continue. If an employee attempts to present a tribunal application arising from a grievance within the normal three month time limit for so doing, but he/she has not written the One Step letter required under the GP, and allowed 28 days to elapse, the tribunal will decline to register the claim as the relevant admissibility conditions will not have been met. This will, however, trigger an automatic three month extension of the time limit from the date when it would have otherwise expired. In this event, the claimant must send the One Step letter by no later than 28 days after the date when the normal time limit would have expired. If he/she does so, there will still be an opportunity to present a valid tribunal claim within the extended time limit. Where the employee sends a One Step letter to the employer, under the GP within the normal time limit for presenting an application to an Employment Tribunal, this will trigger an automatic three month extension of the time limit from the date when it would otherwise have expired. It will not be necessary for either party to have contacted a tribunal for this trigger to be effective.


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Dismissal and disciplinary procedures Where the employee has reasonable grounds for believing a disciplinary procedure is ongoing at the point where the normal time limit applies, the time limit can be extended by three months.


103


Chapter 9 Appeals The right of appeal ............................................................................105

Chapter 9 Appeals

The right of appeal Both the Disciplinary, Dismissal and Grievance Procedures introduced by the Disputes Resolution Regulations that came into force on 1st October 2004, include an appeal stage as the last stage in the standard procedures. The usefulness of the appeal process is not confined just to employees, for it also provides employers with the opportunity to rectify any deficiencies that may have arisen in the operation of the preceding procedural stages of both Disciplinary and Grievance Procedures. By far the largest majority of unfair dismissal claims lost at Employment Tribunal by employers are caused by procedural faults. Rarely does a tribunal find that the employer did not prove a reason that satisfied the requirements of statute to justify the dismissal. The failure is, more often than not, one of a procedural deficiency. The employee was not treated in a manner that the tribunal believed to be reasonable and hence ‘fair’. There were flaws in the way that management dealt with the issue that disadvantaged the employee and meant that they did not receive a fair hearing before they were dismissed. It has long been the practice at Employment Tribunal to find a dismissal that did not allow a right of appeal, or where other aspects of the procedure were flawed to be branded as ‘unfair’. Both statutory DDPs and the GPs state at the conclusion of Stage Two that the employer must: •

…notify the employee of the right to appeal against the decision if the employee is not satisfied.

This squarely places the onus on the employer to notify the employee of their right to appeal, a failure to do so will almost certainly render any resultant dismissal potentially ‘unfair’. Both statutory DDPs and GPs go on to state that: •

If the employee does wish to appeal, he or she must inform the employer.

•

If the employee informs the employer of his or her wish to appeal, the employer must invite the employee to attend a meeting.


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•

The employee must take all reasonable steps to attend the meeting.

•

After the appeal meeting the employer must inform the employee of his final decision.

The employer would be well advised to confirm notification of the right of appeal to the employee in writing, including it in the letter notifying the employee of the outcome of any Stage Two meeting. Note: The employee is required to notify the employer if he or she does wish to exercise the right of appeal. Silence on the part of the employee can reasonably be concluded as an intention not to exercise the right. No further action is then required on the part of the employer. An employee who chooses not to appeal against a decision reached as a result of the operation of either a DDP or GP and who later succeeds with a tribunal claim might well find his or her compensation reduced under the provisions of the Employment Act 2002. Section 31 of the Act states that if it appears to the tribunal that: a)

The claim to which the proceedings relate concerns a matter to which one of the statutory (DDP or GP) procedures applies and

b)

The statutory procedure was not completed before the proceedings were begun and

c)

The non-completion of the statutory procedure was wholly or mainly attributable to failure by the employee: •

To comply with a requirement of the procedure, or

•

To exercise a right of appeal under it

it must, subject to subsection (4), reduce any award which it makes to the employee by 10%, and may, if it considers it just and equitable in the circumstances to do so, reduce it by a further amount, but not so as to make a total reduction of more than 50%. Similarly where the failure to complete the procedure is due to a fault on the part of the employer the statute states: it (the tribunal) must, subject to subsection (4), increase any award that it makes to the employee by 10%, and may, if it considers it just and equitable in all the circumstances to do so, increase it by a further amount, but not so as to make a total amount of more than 50%. The importance of the appeal stage of both the DDP and GP procedure is made evident by this section of the Act. It can prove expensive to either party to fail to exercise, or complete this essential step.


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A limit should be set on the period of time in which an appeal can be lodged – five working days is enough in normal circumstances. The right of the employee to be accompanied and represented at any appeal meeting remains unchanged from the earlier hearings. When scheduling the appeal hearing, the rights of the employee’s representative need to be taken into account. Where the chosen representative cannot attend on the scheduled date and time chosen by the employer, an alternative time must be agreed – no longer than five working days from the previously selected date – for the rearranged hearing. Working days in this context relate to the normal working days of the employee/s concerned. Alternative arrangements may be necessary within all stages of the procedures, depending on the nature of work and the work pattern undertaken, to accommodate shift workers. Similar to earlier hearings, notes of any invitations to meetings should be retained, together with copies of all other related correspondence exchanged between all participants. As far as reasonably practicable, a more senior manager or director, who has not previously been involved in the case, should conduct any appeal hearing. Records and notes of the original hearings should be made available to this manager concerned before the hearing. The manager’s task is not to rehear the matter, but to consider, on the basis of the grounds of the appeal, whether the earlier decision should stand or be amended. The appointment of a more senior manager or director to hear the appeal is important. If the ultimate decision is challenged at tribunal the employer needs to be able to demonstrate that whoever heard the appeal was capable and authorised to overturn or amend any decision already reached in earlier proceedings. The appeal hearing must not be seen to be a mere rubber-stamping exercise. It is very difficult to argue to the satisfaction of a tribunal that a junior manager can, or was prepared, to overturn a decision made earlier by a more senior manager. Where a belief exists in the mind of the manager hearing the appeal that the original decision might be flawed on the grounds of an inadequate, or improper interpretation of the procedure or practice followed in the original hearing/s, it may be sensible for them to use the appeal hearing to rerun the disciplinary or grievance hearing from scratch. In this way any procedural defects that may have occurred in the earlier stages of the procedure can be rectified.


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9 APPEALS

Unless this is the case, the manager or director hearing the appeal should confine the hearing to the grounds on which the appeal has been lodged. It is not enough for the employee to say that they simply disagree with the outcome of the disciplinary or grievance being appealed. The manager must fully explore the thinking behind any such assertion, and be seen to consider and explore this before reaching any final decision. It may be necessary to recall witnesses, or hear fresh witnesses who did not appear at early meetings, where their evidence is relevant to the matter under review, or review or introduce fresh documentation as necessary. Records of any appeal hearing should be agreed and exchanged between the parties and the manager should confirm the outcome of the appeal in writing to the employee concerned, with a copy being sent to the representative.


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Appendices Appendix I

Example of disciplinary rules and procedure ........110

Appendix II

Example of a grievance procedure .........................116

Appendix III Example of a complaints procedure dealing with harassment or bullying ....................................119

Appendix I Example of disciplinary rules and procedure This is a model set of rules which include a disciplinary procedure, appeal procedure and guidance notes for employees. It has been developed for employees at a clinical practice and as such the terminology reflects this.

Preamble The Company requires the highest standards of conduct and performance from all employees as they perform their duties as laid down in their statement of terms and particulars of employment, and any related documentation. It may be appropriate to deal with breaches of the standards laid down in the employment documentation by informal action, before resorting to the formal procedure. Although such informal warnings may be confirmed in writing, they will not be used during the formal disciplinary process. An example of misconduct dealt with in this way might be minor timekeeping violations. From time to time, it may be necessary for the Company to take formal disciplinary action against an employee. The reasons for disciplinary action may include: •

Poor quality work or negligence, lack of application to duties, misuse of the Company’s, residents’, colleagues’ or suppliers’ property.

•

Failure to observe safe and hygienic work practices, or to follow the Company’s, or statutory, regulations regarding health and safety.

•

Refusal to carry out reasonable duties, or obey reasonable instructions, or follow the Company’s rules.

•

Aggressive behaviour, assault, or serious threat of such, whilst at work.

•

Ill-treatment of, or discourtesy to clients, their relatives or colleagues.

•

Misconduct, wilful damage, theft, dishonesty, malicious practices and offences against the law, which affects the Company’s business.

•

Breach of the Company’s IT, email and Internet use guidelines.


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Note: This list is not intended to be exhaustive, but merely provides examples of the types of behaviour considered as inappropriate.

Stages in the disciplinary procedure 1.

When a potential disciplinary matter arises, the employee’s manager will take steps to establish the facts promptly, taking into account statements of all available witnesses as necessary. Where witnesses request anonymity, this will be granted if reasonable. This initial investigation is not part of the formal disciplinary process.

2.

If the employee is invited to an investigatory meeting, and the investigation involves potential gross misconduct, they will have the right to be accompanied by a fellow employee or Trade Union Officer/Professional Body Representative.

3.

Depending upon the outcome of the investigation, the manager will either: a)

Take no further action

b)

Give an informal verbal warning for a minor breach of standards, rather than take any formal action. Any verbal warning may be confirmed in writing to record the improvements required, but in this event, the employee will be told that this is not part of the formal disciplinary procedure, and the warning will not be referred to in future.

c)

Initiate more formal action, when the employee will be invited by letter to attend a formal disciplinary hearing. This letter will set out the detailed allegations and will enclose copies of any witnesses’ statements, which may be anonymous where so requested, and the report following the investigation. The letter will also outline the employee’s right to be accompanied by a fellow employee or Trade Union Officer/Professional Body Representative at the disciplinary hearing. It is the employee’s responsibility to arrange the attendance of his/her companion and any witnesses. However, if the employee has been suspended, he or she should contact their manager to invite any witnesses and a companion who is a fellow employee. The employee will be given a minimum of three working days’ notice, from the day that the company reasonably anticipates that the employee will receive the invitation, to enable them to prepare for the hearing.


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4.

If the misconduct etc is believed to be so serious as to make dismissal a possibility, this will be included in the letter inviting the employee to the hearing.

5.

The employee must confirm that they will be attending the hearing, and notify the chair if they will be accompanied, and if so, by whom. The employee must also notify the chair in advance of any witnesses who will be called by him or her.

6.

At the hearing, the employee will hear the allegations from the investigating manager and be given the opportunity to state his or her case before any decision is reached.

7.

The decision of the manager chairing the hearing will be confirmed in writing.

Suspension Note: Suspension is not a disciplinary sanction. In potentially serious cases of alleged misconduct, or particularly sensitive situations, the employee may be suspended, with pay, whilst investigations are ongoing. Such investigations will be conducted as quickly as possible. The reasons for the suspension will be explained. The suspension will be confirmed in writing. The suspension will be reviewed periodically, to ensure that it is not protracted unnecessarily. If an employee on suspension fails to attend any disciplinary meeting without good reason, payment for the suspension may cease.

Sanctions An employee who is proven to have committed a first breach of the disciplinary standards will be given a formal written warning. Each formal warning will remain valid for a minimum period of six months, unless stated otherwise. The written confirmation of the warning will state: •

The nature of the misconduct.

•

The improvement that is required.

•

Any period of time given for improvement.

•

The consequences of a further breach of the rules of conduct i.e. that further disciplinary action could be initiated.


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APPENDICES

If the employee commits a further act of misconduct during the ‘life’ of the first warning, s/he will be given a final written warning, following a further formal hearing, unless this further incident constitutes gross misconduct. A final written warning will remain valid for a minimum period of 12 months, but may in certain circumstances be for a longer period. Any period that is longer than 12 months will be notified to the employee in the copy of the final written warning.

Note: 1.

A final warning given at this stage cannot be used to support a dismissal for further misconduct without a further disciplinary hearing first taking place, and the right of appeal being offered to the employee.

2.

If the employee is proven to have committed a further breach during the ‘life’ of the final warning, the Company will dismiss or demote the employee.

3.

There may be occasions when, depending on the seriousness of the offence, a final warning is issued without recourse to the earlier stages of the procedure.

4.

Similarly, in a case of proven serious gross misconduct, the employee will be dismissed without notice and without recourse to the earlier stages of the procedure.

Appeals Employees may appeal against any formal disciplinary decision taken at a formal hearing. The appeal must be made in writing, to the Director concerned, within five working days of receiving the disciplinary decision. The appeal will be heard by another company manager or director, as appropriate, who is more senior than the original chair of the disciplinary hearing. The employee will have the right to be accompanied by a fellow employee, or a Trade Union Officer/Professional Body Representative. It is the employee’s responsibility to arrange the attendance of his/her companion and any witnesses, he/she wishes to call. If the employee has been dismissed, they should contact their former manager to invite any witnesses and/or a companion who is a former fellow company employee. The ex-employee will be given a minimum of three working days’


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APPENDICES

notice, from the day that the company reasonably anticipates that they will receive the invitation, to enable them to prepare for the appeal hearing. The ex-employee must confirm that they will be attending the appeal hearing, and notify the chair if they will be accompanied, and if so, by whom. The exemployee must also notify the chair in advance of any fresh witnesses whom they wish to call. The outcome of the appeal will be confirmed in writing. There is only one level of appeal.

Notes of meetings For all formal meetings held under this procedure, the Company will arrange for summary notes to be taken and copied to all parties. Any differences in recollection of the meetings events will be recorded in writing and appended to the disciplinary notes provided that these are notified to the company within five working days of the notes being circulated. Under no circumstances will any disciplinary proceedings be recorded by any electronic medium.

Role of a companion It will be the employee’s responsibility to organise his or her accompaniment. If the employee is suspended, or otherwise forbidden from contacting other employees, and wishes to be accompanied by a fellow employee, the request for accompaniment must be made via the suspending manager. Note: No employee shall have any obligation to agree to be a companion or a witness at any disciplinary or appeal hearing. The employee must follow the same process if he or she wishes any employees who are witnesses to attend. A companion may: •

Address the hearing.

•

Confer with the employee.

•

Put the employee’s case to the hearing.

•

Sum up the employee’s case.

•

Respond on behalf of the employee to any view expressed at the hearing.


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APPENDICES

However, they cannot answer questions put to the employee by the chair of the meeting.

Confidentiality All documents and proceedings associated in any way with any part of the disciplinary process must remain completely confidential at all times. Any employee, witness, companion etc who breaches this rule may themselves be the subject of disciplinary action.

Gross misconduct The following list is not exhaustive, but gives examples of offences which constitute gross misconduct: •

Abuse, violence or serious threats of violence made against persons whilst on the Company’s business, or ill treatment or discourtesy to clients or residents, their relatives or other employees.

•

Theft or unauthorised possession of property belonging to other employees, the Company, suppliers, clients or their relatives.

•

Falsification of records, including fraudulent self-certification of absence, attendance or timekeeping.

•

Wilful damage to property belonging to the Company, suppliers, clients or residents or their relatives.

•

Persistent refusal, after warning of the seriousness of a continued refusal, to obey a reasonable instruction.

•

Serious breaches of health and safety rules.

•

Gross negligence.

•

Unlawful discrimination or sexual, racial or other harassment.

•

Breach of confidential information.

•

Being under the influence of alcohol or non-prescription drugs whilst at work.

•

Unfounded or malicious allegations against colleagues.

•

Failing to report to management, observed, or alleged abuse or harm to residents.

•

Being found guilty of a serious criminal offence, whether related to work or not.


115

Appendix II Example of a grievance procedure

Grievance procedure It is the spirit and intention of this procedure that managers will make every effort to resolve any grievance drawn to their attention by any employee as quickly as possible. Initially, all parties should attempt to resolve issues informally wherever possible. Where this is not possible, this procedure provides that an employee who has a ‘personal grievance’ shall have the opportunity to discuss the matter with management, and to be accompanied by a fellow employee or a Trade Union Officer/Professional Body Representative during all formal stages of the procedure. All parties involved in the grievance should observe confidentiality at all times. Any hearing under the formal procedure may be deferred by up to five working days if the chosen companion is unavailable to attend on the proposed hearing date. A ‘personal grievance’ for the purposes of the formal procedure is: ‘An official complaint by an employee about action that the Company has taken, or is contemplating taking in relation to him/her, about a duty owed to the employee by the Company from statute or the employment contract.’ Issues that may lead to the raising of a grievance include: •

Terms and conditions of employment

•

Health and safety

•

Work relations

•

Working practices

•

Working environment

•

Organizational change

•

Equal opportunities


116

APPENDICES

If the grievance is against your line manager, or regarding sexual or racial discrimination, bullying or victimisation of any nature you should contact, or write to a more senior manager, or a Director. The procedure below will be followed for all grievances raised during your employment, while you remain employed by the Company.

Informal stage If you have a grievance, you should discuss this in the first instance with your immediate manager or supervisor (always subject to the comments above regarding the nature of your grievance). You should aim wherever possible to settle grievances informally with your immediate manager or supervisor.

Stage one If the grievance is not resolved informally, and you wish to take the matter further, you should raise it formally in writing with your Manager. Such action will then be classified as a Formal Grievance and a hearing will be arranged. You must submit all Formal Grievances in writing. At the grievance hearing, you will be asked to state clearly how you wish the grievance to be settled. You may therefore wish to include this in your formal written submission. You will have the right at the hearing to be accompanied by a fellow employee or a Trade Union Officer/Professional Body Representative, which it will be your responsibility to arrange. You, or the manager, may call witnesses if they are able to assist with the settlement of the grievance. After the hearing, you will receive a written response to your grievance within five working days.

Stage two If the matter is still not settled to your satisfaction after Stage One, and you wish to pursue the matter further, you may make a written request for an appeal hearing with a manager or director senior to the person who has dealt with the matter at Stage One. Your request should give as much information as possible and should attach a copy of the letter you received after Stage One.


117

APPENDICES

The request should be sent to the Director within five working days of you receiving the decision from the Stage One hearing. Following the appeal hearing, you will normally receive a written response within five working days. Note: Appeals against any disciplinary penalty should be pursued through the appeal stages of the disciplinary procedure and not through the grievance procedure (except potentially for informal warnings where there is no right of appeal). If you wish to raise a formal grievance concerning a matter that is related to the subject of current formal disciplinary action against you, your grievance will be heard at the disciplinary appeal meeting, assuming that this has not been held at the time that you raise the grievance. If you wish to raise a grievance about any matter that is not related to current disciplinary action, the grievance procedure will commence at Stage One. However, the grievance procedure cannot be used simply to provide a further level of appeal against a disciplinary penalty or decision.


118

Appendix III Example of a complaints procedure dealing with harassment or bullying The Company is committed to ensuring that a safe working environment is provided to all employees, residents and visitors to its premises at all times. It is also committed to providing equality of opportunity and treatment for all of its employees, residents and clients. The Company does not condone harassment or bullying of other employees, clients, residents, members of their family or any other party associated with the business. Harassment, whether racial, sexual, religious, or based on disability or sexual orientation will not be tolerated under any circumstances. All employees are expected, and required, to behave in a way that will not cause offence to others. It is the duty of all managers to ensure that the Company’s policy on harassment and bullying is known by all staff, and that it is implemented fully in each location.

What is harassment and bullying? Harassment and bullying is any non-verbal, verbal or physical abuse, advances or behaviour, which is unwanted by the recipient and which they may consider to be intimidating, offensive or distressing, and/or unwarranted, and which the perpetrator knows, or should know, is offensive to the recipient, or to other people who may witness it. It can be physical or mental and can be defined as continual and persistent, demeaning and downgrading of individuals through words and actions that erode self-confidence and undermine self-esteem. The following types of behaviour may amount to harassment and bullying: •

Unwanted physical contact of a sexual nature, inappropriate, suggestive or uninvited comments or demands for sexual favours.

•

Intimate questioning about personal or sexual life.


119

APPENDICES

•

Gossip or speculation about sexuality.

•

Offensive jokes, banter, abuse, language, swearing, shouting, lewd comments.

•

Name calling, gossip, offensive graffiti, posters/calendars, flags, emblems etc.

•

Threats, physical assault, aggression, insulting behaviour or gestures.

•

Isolation and exclusion of any employee at the workplace.

•

Persistent, grossly unfair and excessive criticism.

•

Humiliating, ridiculing or demeaning an individual.

•

Unfair allocation of work and/or responsibilities.

•

Unreasonable and constant under-valuation of a person’s efforts at work.

•

Continually and constantly setting unrealistic work targets or changing work patterns.

•

Constant and excessive supervision and overruling a person’s legitimate authority.

•

Intimidating or aggressive correspondence, including e-mail.

Note: The above are examples and are not meant to be an exhaustive list. The Company considers serious cases of harassment and bullying to amount to gross misconduct, which will be dealt with under the company’s disciplinary procedure. Where proven this will result in the termination of the employment of the harasser or bully on the grounds of gross misconduct.

Harassment/bullying procedure It is recognised that, in some cases, a complaint may be of a sensitive and confidential nature. Each instance will therefore be handled according to the individual circumstances. Management recognise that there may be two distinct approaches to dealing with the issues raised – by adopting either an informal or a formal procedure. The use of the ‘informal’ procedure does not mean that the complaint will be viewed less seriously by the Company; rather that the aim is to stop the harassment quickly and to prevent any re-occurrence.


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APPENDICES

As soon as any complaint has been made to a company manager, using either the informal or formal procedure, it will be investigated as a matter of urgency.

Informal procedure If an employee considers that he or she is being harassed or bullied then they should, if possible, inform the instigator that the behaviour is unwanted and/or offensive. A timely written request that the behaviour is unacceptable may be effective and stop the conduct. Where possible, the employee should keep notes and, if possible, record in a diary each occasion the unacceptable behaviour that has occurred, and what actually happened, including times and locations of the event/s. If the behaviour does not cease, then the employee should speak to his/her manager who will consider what action to take based upon the complainant’s wishes. If the alleged harasser is the employee’s line manager, the employee should contact a more senior manager, or a Director of the Company. There may be scope under the informal procedure for the manager to speak to the alleged harasser and advise him/her of the nature of their conduct and explain why it is unacceptable to the employee and the company. If the action continues, or if it is not deemed to be appropriate to deal with the matter on an informal basis, then formal action will be required.

Formal procedure The complainant should put into writing his/her complaint to his/her line manager. If the alleged harasser is the employee’s line manager, the employee should write to a senior manager or a Company Director. As much detail as possible should be given, and include: •

The name of the alleged harasser.

•

What has occurred.

•

Where and when it occurred.

•

The name/s of any witness/es.

•

Any steps taken to stop the harassment.

•

Whether the alleger is prepared for his/her name to be released to the alleged harasser as part of an investigation. If anonymity is requested, this should be observed.


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APPENDICES

The receiving manager should immediately inform the Director of the allegation, and set up an urgent confidential meeting with the complainant to explore the allegation/s fully. The receiving manager should ensure that a thorough investigation of the allegation/s is undertaken, including speaking to the alleged harasser. Consideration should be given to the possibility of suspending the alleged harasser (on pay) pending further investigation, or moving one or both of the parties, to ensure that there is no immediate further opportunity for harassment. The alleged harasser has the right to be accompanied at all stages by a fellow employee or Trade Union Officer/Professional Body Representative. Failure to co-operate with an investigation, or to comply with any instruction to attend a meeting, may result in suspension without pay. Following the investigation, a report will be prepared advising what action (if any) is to be taken. If disciplinary action is to follow, the alleged harasser will be provided with copies of all documentation upon which the company will rely at the hearing. The disciplinary hearing should then be convened in accordance with the normal Disciplinary Procedure. On completion of the investigation and/or disciplinary procedure, the complainant will normally be informed that action has been taken, although these details should not be revealed to any other person on the grounds of confidentiality. Managers should be aware of the need for confidentiality throughout this entire process, and should try to ensure in particular the privacy of the complainant, and the alleged harasser, who it must be remembered remains innocent of all and any charges against them, until proven otherwise. Note: If at the initial hearing, the accused admits to the allegation, but convinces the manager that there will be NO future re-occurrence, then the Company may decide not to take disciplinary action but instead, send a letter to confirm this, warning of the likely outcome of any re-offence.


122

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£125.00

Negotiating the fault line between private practice and in-house employment can be tricky, as the scope for conflicts of interest is greatly increased. Insights into successfully managing the In-house legal function discusses and suggests ways of dealing with these and other issues.

1 85418 226 X • 2002 This valuable new report sets out a systematic approach for assessing the remedies available for various types of breach of contract, what the remedies mean in terms of compensation and how the compensation is calculated.

Commercial contracts – drafting techniques and precedents ROBERT RIBEIRO

£125.00

1 85418 210 2 • 2002 The Report will: •

Improve your commercial awareness and planning skills

For full details of any title, and to view sample extracts please visit: www.thorogood.ws You can place an order in four ways:

•

Enhance your legal foresight and vision

1 Email: [email protected]

•

Help you appreciate the relevance of rules and guidelines set out by the courts

2 Telephone: +44 (0)20 7749 4748

Ensure you achieve your or your client’s commercial objectives

4 Post: Thorogood, 10-12 Rivington Street, London EC2A 3DU, UK

•

t +44 (0)20 7749 4748

e [email protected]

3 Fax: +44 (0)20 7729 6110

w w w w. t h o r o g o o d . w s

The legal protection of databases SIMON CHALTON

Email – legal issues £145.00

SUSAN SINGLETON

£95.00

1 85418 245 5 • 2001

1 85418 215 3 • 2001

Inventions can be patented, knowledge can be protected, but what of information itself?

What are the chances of either you or your employees breaking the law?

This valuable report examines the current EU [and so EEA] law on the legal protection of databases, including the sui generis right established when the European Union adopted its Directive 96/9/EC in 1996.

The report explains clearly:

Litigation costs MICHAEL BACON

•

How to establish a sensible policy and whether or not you are entitled to insist on it as binding

•

The degree to which you may lawfully monitor your employees’ e-mail and Internet use

•

The implications of the Regulation of Investigatory Powers Act 2000 and the Electronic Communications Act 2000

•

How the Data Protection Act 1998 affects the degree to which you can monitor your staff

•

What you need to watch for in the Human Rights Act 1998

•

TUC guidelines

•

Example of an e-mail and Internet policy document.

£95.00

1 85418 241 2 • 2001 The rules and regulations are complex – but can be turned to advantage. The astute practitioner will understand the importance and relevance of costs to the litigation process and will wish to learn how to turn the large number of rules to maximum advantage.

International commercial agreements REBECCA ATTREE

£175

1 85418 286 2 • 2002 A major new report on recent changes to the law and their commercial implications and possibilities. The report explains the principles and techniques of successful international negotiation and provides a valuable insight into the commercial points to be considered as a result of the laws relating to: pre-contract, private international law, resolving disputes (including alternative methods, such as mediation), competition law, drafting common clauses and contracting electronically. It also examines in more detail certain specific international commercial agreements, namely agency and distribution and licensing. For full details of any title, and to view sample extracts please visit: www.thorogood.ws You can place an order in four ways: 1 Email: [email protected] 2 Telephone: +44 (0)20 7749 4748 3 Fax: +44 (0)20 7729 6110 4 Post: Thorogood, 10-12 Rivington Street, London EC2A 3DU, UK

S e e f u l l d e t a i l s o f a l l T h o r o g o o d t i t l e s o n w w w. t h o r o g o o d . w s

HR AND EMPLOYMENT LAW

Employee sickness and fitness for work – successfully dealing with the legal system GILLIAN HOWARD

£95.00

1 85418 281 1 • 2002 Many executives see Employment Law as an obstacle course or, even worse, an opponent – but it can contribute positively to keeping employees fit and productive. This specially commissioned report will show you how to get the best out of your employees, from recruitment to retirement, while protecting yourself and your firm to the full.

How to turn your HR strategy into reality TONY GRUNDY

£129.00

1 85418 183 1 • 1999 A practical guide to developing and implementing an effective HR strategy.

Internal communications JAMES FARRANT

£125

1 85418 149 1 • July 2003 How to improve your organisation’s internal communications – and performance as a result.

Data protection law for employers SUSAN SINGLETON

£125

There is growing evidence that the organisations that ‘get it right’ reap dividends in corporate energy and enhanced performance.

1 85418 283 8 • May 2003 The new four-part Code of Practice under the Data Protection Act 1998 on employment and data protection makes places a further burden of responsibility on employers and their advisers. The Data protection Act also applies to manual data, not just computer data, and a new tough enforcement policy was announced in October 2002.

MARK THOMAS

£69.00

1 85418 270 6 • 2001 Practical advice on how to attract and keep the best.

Successfully defending employment tribunal cases

1 85418 008 8 • 1997

This report will help you to understand the key practical and legal issues, achieve consensus and involvement at all levels, understand and implement TUPE regulations and identify the documentation that needs to be drafted or reviewed.

New ways of working STEPHEN JUPP

DENNIS HUNT

£95.00

Why do so many mergers and acquisitions end in tears and reduced shareholder value?

Successful graduate recruitment JEAN BRADING

Mergers and acquisitions – confronting the organisation and people issues

£99.00

£95 1 85418 169 6 • 2000

1 85418 267 6 • 2003 Fully up to date with all the Employment Act 2002 changes. 165,000 claims were made last year and the numbers are rising. What will you do when one comes your way?

t +44 (0)20 7749 4748

e [email protected]

New ways of working examines the nature of the work done in an organisation and seeks to optimise the working practices and the whole context in which the work takes place.


Knowledge management SUE BRELADE, CHRISTOPHER HARMAN

changes to internal disciplinary and grievance procedures

•

significant changes to unfair dismissal legislation

•

new rights for those employed on fixed-term contracts

•

the introduction of new rights for learning representatives from an employer’s trade union

£95.00

1 85418 230 7 • 2001 Managing knowledge in companies is nothing new. However, the development of a separate discipline called ‘knowledge management’ is new – the introduction of recognised techniques and approaches for effectively managing the knowledge resources of an organisation. This report will provide you with these techniques.

Reviewing and changing contracts of employment ANNELISE PHILLIPS, TOM PLAYER and PAULA ROME

This specially commissioned new report examines each of the key developments where the Act changes existing provisions or introduces new rights. Each chapter deals with a discreet area.

Email – legal issues £125

SUSAN SINGLETON

£95.00

1 85418 215 3 • 2001

1 85418 296 X • 2003 The Employment Act 2002 has raised the stakes. Imperfect understanding of the law and poor drafting will now be very costly.

360,000 email messages are sent in the UK every second (The Guardian). What are the chances of either you or your employees breaking the law? The report explains clearly:

This new report will: •

Ensure that you have a total grip on what should be in a contract and what should not

•

Explain step by step how to achieve changes in the contract of employment without causing problems

•

Enable you to protect clients’ sensitive business information

•

Enhance your understanding of potential conflict areas and your ability to manage disputes effectively.

Applying the Employment Act 2002 – crucial developments for employers and employees AUDREY WILLIAMS

•

•

How to establish a sensible policy and whether or not you are entitled to insist on it as binding

•

The degree to which you may lawfully monitor your employees’ e-mail and Internet use

•

The implications of the Regulation of Investigatory Powers Act 2000 and the Electronic Communications Act 2000

•

How the Data Protection Act 1998 affects the degree to which you can monitor your staff

•

What you need to watch for in the Human Rights Act 1998

•

TUC guidelines

•

Example of an e-mail and Internet policy document.

£125

1 85418 253 6 • May 2003 The Act represents a major shift in the commercial environment, with far-reaching changes for employers and employees. The majority of the new rights under the family friendly section take effect from April 2003 with most of the other provisions later in the year. The consequences of getting it wrong, for both employer and employee, will be considerable – financial and otherwise. The Act affects nearly every aspect of the work place, including: •

flexible working

•

family rights (adoption, paternity and improved maternity leave)

For full details of any title, and to view sample extracts please visit: www.thorogood.ws You can place an order in four ways: 1 Email: [email protected] 2 Telephone: +44 (0)20 7749 4748 3 Fax: +44 (0)20 7729 6110 4 Post: Thorogood, 10-12 Rivington Street, London EC2A 3DU, UK


SALES, MARKETING AND PR

Implementing an integrated marketing communications strategy

Tendering and negotiating for MoD contracts

NORMAN HART

TIM BOYCE

£99.00

£125.00

1 85418 120 3 • 1999

1 85418 276 5 • 2002

Just what is meant by marketing communications, or ‘marcom’? How does it fit in with other corporate functions, and in particular how does it relate to business and marketing objectives?

This specially commissioned report aims to draw out the main principles, processes and procedures involved in tendering and negotiating MoD contracts.

Defending your reputation Strategic customer planning ALAN MELKMAN AND PROFESSOR KEN SIMMONDS

SIMON TAYLOR £95.00

1 85418 255 2 • 2001 This is very much a ‘how to’ Report. After reading those parts that are relevant to your business, you will be able to compile a plan that will work within your particular organisation for you, a powerful customer plan that you can implement immediately. Charts, checklists and diagrams throughout.

1 85418 251 • 2001 ‘Buildings can be rebuilt, IT systems replaced. People can be recruited, but a reputation lost can never be regained…’ ‘The media will publish a story – you may as well ensure it is your story’ Simon Taylor ‘News is whatever someone, somewhere, does not want published’ William Randoplh Hearst When a major crisis does suddenly break, how ready will you be to defend your reputation?

Selling skills for professionals KIM TASSO

£65.00

1 85418 179 3 • 2000 Many professionals still feel awkward about really selling their professional services. They are not usually trained in selling. This is a much-needed report which addresses the unique concerns of professionals who wish to sell their services successfully and to feel comfortable doing so. ‘Comprehensive, well written and very readable… this is a super book, go and buy it as it is well worth the money’ Professional Marketing International

Insights into understanding the financial media – an insider’s view SIMON SCOTT

This practical briefing will help you understand the way the financial print and broadcast media works in the UK.

European lobbying guide £129.00

1 85418 144 0 • 2000

Corporate community investment £75.00

Understand how the EU works and how to get your message across effectively to the right people.

1 85418 192 0 • 1999 Supporting good causes is big business – and good business. Corporate community investment (CCI) is the general term for companies’ support of good causes, and is a very fast growing area of PR and marketing.

t +44 (0)20 7749 4748

£99.00

1 85418 083 5 • 1998

BRYAN CASSIDY

CHRIS GENASI

£95.00

e [email protected]


Lobbying and the media: working with politicians and journalists

Managing corporate reputation – the new currency

MICHAEL BURRELL

SUSAN CROFT and JOHN DALTON

£95.00

1 85418 240 4 • 2001

1 85418 272 2 • June 2003

Lobbying is an art form rather than a science, so there is inevitably an element of judgement in what line to take. This expert report explains the knowledge and techniques required.

ENRON, WORLDCOM… who next?

Strategic planning in public relations KIERAN KNIGHTS

£69.00

At a time when trust in corporations has plumbed new depths, knowing how to manage corporate reputation professionally and effectively has never been more crucial.

Surviving a corporate crisis – 100 things you need to know

1 85418 225 0 • 2001

PAUL BATCHELOR

Tips and techniques to aid you in a new approach to campaign planning.

1 85418 208 0 • April 2003

Strategic planning is a fresh approach to PR. An approach that is fact-based and scientific, clearly presenting the arguments for a campaign proposal backed with evidence.

£125

£125

Seven out of ten organisations that experience a corporate crisis go out of business within 18 months. This very timely report not only covers remedial action after the event but offers expert advice on preparing every department and every key player of the organisation so that, should a crisis occur, damage of every kind is limited as far as possible.

FINANCE

Tax aspects of buying and selling companies MARTYN INGLES

Practical techniques for effective project investment appraisal £99.00

RALPH TIFFIN

£99.00

1 85418 189 0 • 2001

1 85418 099 1 • 1999

This report takes you through the buying and selling process from the tax angle. It uses straightforward case studies to highlight the issues and more important strategies that are likely to have a significant impact on the taxation position.

How to ensure you have a reliable system in place. Spending money on projects automatically necessitates an effective appraisal system – a way of deciding whether the correct decisions on investment have been made.

Tax planning opportunities for family businesses in the new regime CHRISTOPHER JONES

£49.00

1 85418 154 8 • 2000 Following recent legislative and case law changes, the whole area of tax planning for family businesses requires very careful and thorough attention in order to avoid the many pitfalls.


MANAGEMENT AND PERSONAL DEVELOPMENT

Strategy implementation through project management TONY GRUNDY

£95.00

1 85418 250 1 • 2001 The gap Far too few managers know how to apply project management techniques to their strategic planning. The result is often strategy that is poorly thought out and executed. The answer Strategic project management is a new and powerful process designed to manage complex projects by combining traditional business analysis with project management techniques.

For full details of any title, and to view sample extracts please visit: www.thorogood.ws You can place an order in four ways: 1 Email: [email protected] 2 Telephone: +44 (0)20 7749 4748 3 Fax: +44 (0)20 7729 6110 4 Post: Thorogood, 10-12 Rivington Street, London EC2A 3DU, UK

t +44 (0)20 7749 4748

e [email protected]


Dismissal and Grievance Procedures: Framing and Operating Procedures to Meet Current Rules (Thorogood Reports)

CURRENT Procedures Surgery

import procedures and documentation

Molecular and Diagnostic Procedures in Mycoplasmology, Volume 1 (Molecular Procedures)

Base SAS 9.2 Procedures Guide: Statistical Procedures

Valid Analytical Methods and Procedures

Behaviour Modification: Principles and Procedures

Behavior Modification: Principles and Procedures

Death Investigation: Systems and Procedures

Current Procedures: Pediatrics (Lange Medical Books)

Introduction to Wine Laboratory Practices and Procedures

Invasive Procedures

Congress of the U.S.: Commitees, Rules, and Procedures

Network Security Policies and Procedures

Cosmetic Dermatology: Products and Procedures

Shoulder Surgery: Principles and Procedures

Valid Analytical Methods and Procedures

Valid Analytical Methods and Procedures

Internal Communications (Thorogood Reports)

A Guide to Radiological Procedures

Cosmetic Dermatology: Products and Procedures

TUPE Regulations (Thorogood Reports)

Discrimination Law and Employment Issues (Thorogood Reports)

STEREO RECORDING PROCEDURES

mysql stored procedures

Multiple comparison procedures

Procedures in International Law

Studio Recording Procedures

Multiple decision procedures

pipe weld procedures

European Employment Law (Thorogood Reports)

Dismissal and Grievance Procedures: Framing and Operating Procedures to Meet Current Rules (Thorogood Reports)

CURRENT Procedures Surgery

import procedures and documentation

Molecular and Diagnostic Procedures in Mycoplasmology, Volume 1 (Molecular Procedures)

Base SAS 9.2 Procedures Guide: Statistical Procedures

Valid Analytical Methods and Procedures

Behaviour Modification: Principles and Procedures

Behavior Modification: Principles and Procedures

Death Investigation: Systems and Procedures

Current Procedures: Pediatrics (Lange Medical Books)

Introduction to Wine Laboratory Practices and Procedures

Invasive Procedures

Congress of the U.S.: Commitees, Rules, and Procedures

Network Security Policies and Procedures

Cosmetic Dermatology: Products and Procedures

Shoulder Surgery: Principles and Procedures

Valid Analytical Methods and Procedures

Valid Analytical Methods and Procedures

Internal Communications (Thorogood Reports)

A Guide to Radiological Procedures

Cosmetic Dermatology: Products and Procedures

TUPE Regulations (Thorogood Reports)

Discrimination Law and Employment Issues (Thorogood Reports)

STEREO RECORDING PROCEDURES

mysql stored procedures

Multiple comparison procedures

Procedures in International Law

Studio Recording Procedures

Multiple decision procedures

pipe weld procedures

European Employment Law (Thorogood Reports)

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