Following a thorough review of the statutory dispute resolution
regulations that came into force on 1 October 2004, the government
introduced a new set of rules on 6 April 2009.
A year on, it seems timely to ask if the new system has made any
difference to the number of cases being brought to tribunal and to
summarise the approach that employers should now be following.
Do the Acas figures show a difference?
According to figures released recently by Acas (the conciliation
service), the answer is undoubtedly yes.
It estimates that over 5,000 tribunal claims have been avoided
already as a result of the launch of its pre-claim conciliation (PCC)
service in April last year to coincide with the new rules, along with
the introduction of a new Code of Practice on Disciplinary and Grievance
Procedures.
At the moment around 300 referrals are being received every week on
average, and Acas expects this number to rise to about 400 during 2010.
What does the Acas code of practice state?
With regard to disciplinaries, the code states that:
- Employers should carry out any necessary investigations without
delay to establish the facts of a potential disciplinary issue. Ideally
different people should carry out the investigation and disciplinary
hearings
- Employers should inform employees in writing of the basis of any
alleged misconduct, giving them enough information to allow them to
answer the case at a disciplinary hearing
- Employers should give employees the chance to put their side of the
story before making any decisions. When giving written notification of
the time and venue of the hearing, employers should include copies of
any written evidence and inform the employee of their right to be
accompanied at the hearing
- At the meeting the employer should explain the complaint and go
through the evidence. The employee should be allowed to set out their
case, answer any allegations that have been made and have a reasonable
opportunity to ask questions, present evidence and call relevant
witnesses, having given advance notice that they intend to do this
- After the meeting the employer must decide whether or not to take
disciplinary action and inform the employee accordingly in writing. They
should then allow employees to appeal any decision to formally
discipline them
- If an employee is persistently unable or unwilling to attend a
disciplinary meeting without good cause the employer can make a decision
in their absence, on the evidence available to them
With regard to grievances, the code states that:
- Employees should set out a potential grievance in writing, having
tried to resolve it informally first of all
- Employers should then arrange for a formal meeting to be held
without unreasonable delay and then decide what action to take
- They should set out their decision, in writing, and, where
appropriate, make clear what action they intend to take to resolve the
grievance
- The employee should be told that they can appeal if they are not
happy with the employer’s decision
- The appeal should be heard without unreasonable delay and at a time
and place which has been notified to the employee in advance. It should
be dealt with impartially and wherever possible by a manager not
previously involved in the case.
The code recommends in general that:
- Employers and employees should raise and deal with issues promptly
and should not unreasonably delay meetings, decisions or confirmation of
those decisions.
- Employers should allow employees to be accompanied at any formal
disciplinary or grievance meeting.
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The 1998 Working Time Regulations (WTR) state that workers must abide
by certain notice provisions when asking to take their statutory
holiday entitlement. In Lyons v Mitie Security Ltd the
Employment Appeal Tribunal (EAT) said that workers can lose any holiday
that they had not taken by the end of a leave year as long as the
employer had not imposed the notice provisions in an unreasonable or
arbitrary way.
What happened?
Mr Lyons worked as a security guard for Mitie but was only paid for
the hours he worked, which were not guaranteed. Clause 5 of his contract
stated that he was entitled to four weeks’ paid holiday but that he had
to give four weeks’ advance notice of any holiday requests on a
standard company form. The holiday year ended on 31 March every year.
At the beginning of March 2008, Mr Lyons had nine days' leave still
due to him. Mitie failed to provide him with any shifts and it looked
increasingly as if he would not receive any further work for that month.
On 6 March Mr Lyons sent a fax asking to be paid for the nine days
leave still due to him. He then lodged a grievance when he did not
receive the payment. The company replied that as he had not given four
weeks notice of the request and as it could not be carried over, he had
to forfeit it.
Mr Lyons resigned and made a number of claims, including one for
breach of contract for unpaid holiday leave. The tribunal rejected Mr
Lyons’ claim, saying it was not a breach of contract for Mitie to
refuse to grant him the leave, and therefore to pay him holiday pay.
The EAT said that the question was whether the notice requirements in
regulation 15 of the WTR (that employees must give statutory notice of
any request subject to contractual variation) were superseded by an
employee’s “inalienable right” to take four weeks paid leave within the
leave year as stated in regulation 13.
It concluded that this was not an easy question to answer, but “the
absence of case law would suggest that employees have not been denied
their reasonable requests for holiday entitlement, even towards the end
of a leave year”.
It decided that the right was not, however, inalienable (in other
words, it was not absolute) because it was “subject to the notice
provisions ... set out in Regulation 15 subject to any contractual
variation. Clearly that mechanism must operate during the whole of the
leave year and the mechanism must not be operated by an employer in an
unreasonable, arbitrary or capricious way so as to deny any entitlement
lawfully requested. But it does seem to us that the mechanism, if
operated correctly by both employee and employer, could result ... in
the loss of the right at the end of the leave year in respect of leave
not taken”.
As the tribunal had not properly dealt with whether there had been a
breach of the contractual provisions in relation to holiday entitlement,
it would remit the case back to a different tribunal for a re-hearing.
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The European Convention on Human Rights states, among other things,
that everyone has the right to a fair trial. The Employment Appeal
Tribunal (EAT) has said, however, in Khan v Vignette Europe Ltd that the
right to a fair hearing is not a “trump card” but one of a number of
factors that tribunals have to weigh up when considering all relevant
factors.
What happened?
After his dismissal for accessing pornographic and other
inappropriate internet sites during work hours in June 2007, Mr Khan
lodged a number of tribunal claims. The case was due to be heard
on 14 April 2008 but had to be postponed because Mr Khan was unwell.
The tribunal then wrote to both sides in May giving a fixed listing
of 1 to 5 September. Mr Khan’s new solicitors asked for an
adjournment on 26 August but this was refused. All the parties turned up
for the hearing on 1 September at which Mr Khan asked for another
adjournment, but this was again refused.
Then on 3 September Mr Khan made another application for an
adjournment because, he said, the hearing dates clashed with Ramadan.
The tribunal also rejected this on the ground that Mr Khan had known the
dates for the hearing since May and been aware for the best part of a
year when Ramadan would fall in 2008.
It also rejected his argument that it would be distressing for him
during a “period of mental and spiritual purity” to be caught up in the
anger or upset of litigation and a case in which he would have to
consider sexually explicit images. The tribunal said that it would
direct the contents and style of cross-examination and that the evidence
of the sexual material (which he himself had watched at length) would
not be dealt with in a way that was “disproportionate or prurient”.
It also rejected his argument that not granting him an adjournment
was a breach of article 6 (right to a fair trial) and article 14 (right
of non discrimination) of the European Convention on Human Rights.
Instead, it said these rights had to be balanced against the company’s
right to a trial within a reasonable time and the public interest in
bringing litigation to a close. The rest of the hearing - which
dismissed his claims - was conducted in his absence. Mr Khan appealed on
the basis that the failure to adjourn meant he had been denied a fair
trial under article 6.
The EAT, however, disagreed. It said that it could not find any
“error in the Tribunal's approach or reasoning which would permit us to
interfere with what was plainly a discretionary decision, arrived at
after carefully balancing all the relevant factors, and which cannot,
even arguably, be said to be perverse”.
The tribunal was entitled to have regard to the point in time when Mr
Khan first raised the issue of his beliefs and to conclude that he had
not taken even the most basic steps to avoid a hearing that clashed with
Ramadan. The tribunal had also been correct when it concluded that Mr
Khan’s religious views and his right to a fair hearing were not a “trump
card” but an important factor to be weighed in the balance.
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It costs a lot of money when employees go off sick, so the Government
agreed last year that the sick note (which it felt encouraged employees
to stay off work) should be scrapped.
So on 6 April, the current sick note was replaced by a “statement of
fitness for work” or “fit” note which is applicable to all employees in
England, Scotland, Wales and Northern Ireland.
Under the old system, doctors issued a sick note to an employee when
they were ill or injured which employers used as evidence for sick pay
purposes. In the old sick notes, doctors simply described the
individual's condition and indicated whether or not they were fit to
work.
With the introduction of the new fit note, doctors can advise
employees on how they may be able to return to work. The purpose of the
note as evidence for claiming sick pay has not changed.
The new form requires the GP to advise the employee either that
they are “not fit for work” or “may be fit for work”. This means that
the doctor believes the employee may be able to return to work with some
help from their employer. It then allows the GP to suggest four
alternatives, as follows:
- A phased return to work
- Altered hours
- Amended duties
- Adaptions to the workplace
Under this new system, GPs can no longer declare someone to be “fit
for work”. If they think that the person is fit, they just do not issue a
new medical certificate. The onus is placed on the employer to decide
whether he can make appropriate and reasonable changes to the employee’s
duties and/or workplace to enable him to return to work.
There is also space on the form for the doctor to provide more
information on the condition and how it may affect what the patient
does.
There is, however, some concern about how the fit note will work in
practice, in particular the amount of detail that GPs will have to
provide and that they may make recommendations that are either not
practical or are too expensive. Although not legally binding on
employers, some experts are concerned that the fit notes may also lead
to more grievances.
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Hatchers Solicitors are getting on their bikes in April and May to cycle
2,000 miles to raise £20,000 for cancer charities.
We need as much support as possible in reaching our target so we are
asking businesses to help us along the way by becoming “Associate” or
“Core “sponsors.
To be an Associate sponsor the minimum pledge is £100 – in return we
will publish the business’ name and create a link to their website from
Hatchers ‘ website and facebook page.
Any business donating more than £250 will become a Core sponsor. In
addition to the above, core sponsors will be invited to join us at a
celebratory social when we will share stories and pictures and you will
have the opportunity to meet the cyclists. Core sponsors will also be
named in all post event publicity with a special vote of thanks.
We do hope that you will support us - every donation will help us to
achieve our £10 a mile goal.
If you wish to make a personal donation please visit our Just Giving
pages or email bikerides@hatchers.co.uk and we will contact you.
http://www.justgiving.com/Hatchers-Cycling-for-BTBC
http://www.justgiving.com/Hatchers-Cycling-for-TPCC
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