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Clarifying the common quesitons over the ACAS Code on grievance and discipline

Although the first year of the new Acas code on disciplinary and grievance procedures appears to have passed uneventfully, the code is still giving rise to questions. And where uncertainty exists, litigation follows.


What is a “formal grievance”?The code provides no guidance on this. It defines grievances as “concerns, problems or complaints that employees raise with their employers”. So grievances could be found in letters, emails, memos, or maybe even statutory discrimination questionnaires. They probably won’t have to be labelled as a “grievance” and third parties raising a complaint on behalf of an employee may be included.


How should we react to verbal grievances?Employees should submit formal grievances in writing. Failing to do so could result in compensation being reduced by up to 25 per cent if the issue gets to tribunal. But an employee failure does not excuse the employer. Failing to handle a verbal grievance could still breach the code, even though it would be unlikely to result in compensation being uplifted. Employers should still respond appropriately to serious verbal grievances, particularly if a claim could result.


Does the code apply to former employees?
The code does apply to breach of contract claims, which can be raised only once employment has ended, so it is possible former employees will be covered. Employers failing to apply the code could risk compensation being uplifted by up to 25 per cent. If former employees are hell-bent on “having their day in court”, the employer would be able to argue that failing to comply with the code was not unreasonable since the grievance process was futile and an uplift therefore not appropriate.


Does the code apply to ill-health dismissals?
This, too, is unclear. Until tribunals provide clarity, it is sensible to adhere to the code in ill-health dismissals, and dismissals for “some other substantial reason”. It would seem inappropriate to follow the code where the statutory retirement procedure is being followed. It clearly applies in disciplinary situations, but not in redundancy dismissals or the non-renewal of fixed-term contracts.


What’s a “reasonable opportunity” to call witnesses?
An employer need only agree to requests for witnesses at disciplinary hearings where this is reasonable, unless this right is enshrined in internal policies. Where witnesses are irrelevant, or challenges to their evidence can be investigated without them attending a hearing, the employer can argue that failing to allow them to attend wasn’t unreasonable.


Can employees cross-examine witnesses?The code does not seem to require cross-examination – only that employees should be able to raise points about witnesses’ information. However, the code’s guidance states that employees should be allowed to see witness statements and “question them”. Arguably, this relates to raising questions about the statements, rather than questioning witnesses directly. In most cases, employees should simply be allowed to raise issues at the hearing. However, in cases involving serious allegations, it may be necessary to allow cross-examination, so employees can present their version of events.

Top three employment law concerns for 2010 revealed

Top three employment law concerns for 2010 revealed
Source: PM Online
A survey among employers, carried out by law firm Charles Russell, recently found that the top three concerns for HR professionals in 2010 so far are, in order of priority:
• dealing with sickness absence;
• performance management; and
• proposed changes to the national retirement age.

Although these issues also trouble firms in more buoyant times, they are currently being addressed with added caution and increased scrutiny because maintaining the best workforce has never been more crucial.


Sickness absence
Sickness absence reduces productivity and has a negative impact on morale. A reduction in manpower magnifies this further, because absenteeism puts an increased strain on an already stretched workforce. Employers cited stress in the workplace as a key aspect of absenteeism, as staff face demands to improve productivity through increased workloads while the potential loss of their jobs looms large in the background.

To alleviate this concern, employers should be:
• monitoring sickness absence;
• using strong team management to identifying undue pressures;
• improving communications with staff and encouraging them to voice concerns early;
• redistributing workloads; and
• offering employees support in the form of counselling or additional time off work.

When “fit notes” come into force on 6 April 2010, switching the emphasis from what employees cannot do to what they can do, employees should be reintegrated back into the workforce earlier, possibly by using phased returns. Challenges accompany this, particularly in respect of employers’ duties under the Disability Discrimination Act 1995. Doubts have been expressed over whether GPs have the right expertise to make informed assessments on individuals’ capability within their specific industry. Employers face the added problem of staff returning but not operating at full capacity, necessitating the redistribution of workloads to maximise efficiency.


Performance management
This is widely recognised as a big thorn in the side of many organisations, particularly during leaner times. Under-performing employees are not always the first to go in redundancy programmes and, now more than ever, employers cannot afford to “carry” inefficient staff.

Employers should ensure any performance management is carried out as quickly and efficiently as possible. This requires:
• early identification, coupled with the necessary warnings about consequences if performance doesn’t improve;
• effective monitoring with support and training over a reasonable length of time; and
• clear parameters of what improvement is expected.


National retirement age
Under the Age Regulations 2006, any retirement below 65 needs to be justified and is only permissible in limited circumstances. Employers must comply with retirement provisions and a formal process should be followed to prevent any claims for unfair dismissal.

The Department for Business, Innovation and Skills is currently carrying out a consultation on whether the default retirement age of 65 remains appropriate and necessary.

The impact of such a move on organisations could be huge. Employers should be exploring options now for their older employees, such as part-time working and job sharing, which may be mutually beneficial to both employees and the organisation.

Are you leading the way on the AWD?

As Asda takes the lead in introducing equal pay for its temporary workers, following on from a report commissioned in the meat sector, are you leading the way? Have you introduced equal pay, treatment and conditions for your temps in advance of the AWD introduction in October 2011?

Use it or loose it for annual leave interpretation of ECJ decision

This is the first reported case of a tribunal applying the European Court of Justice (ECJ) decision made in Pereda (ECJ C-277/08). The ECJ held that holiday could be postponed where an employee was sick, if necessary to the next holiday year.

The issues in this case were very similar to those in Pereda. Shah had booked holiday towards the end of the holiday year, but then was absent due to sickness at the time of his planned leave. He was paid sick pay during his absence and holiday pay during what would have been his holiday period. The holiday year ended before he returned to work and he asked if he could take the holiday leave after his return in the new holiday year. He accepted he would have to account for the holiday pay that had already been paid. His employer refused, relying on Regulation 13(9) of the Working Time Regulations 1998, which sets out a “use it in the year of accrual or lose it” rule in relation to annual leave.

The employment tribunal held that it was bound to follow the ECJ decision, and that it was not possible to construe Regulation 13(9) in accordance with that decision. The normal course of events would be for Shah to bring a High Court claim against the government on the basis that it had not correctly transposed the EU directive into UK law. However, this would not have given Shah an appropriate remedy because he was seeking holiday leave, not financial compensation.

The tribunal held that it was permitted to add words to Regulation 13(9) to ensure compliance with the directive, as this was consistent with the underlying thrust of the legislation. So it inserted words to the effect that the “use it or lose it” policy would not apply where an employee had been unable to take annual leave as a result of sickness absence.

Although only a tribunal decision, the case suggests that employment tribunals are willing to interpret the UK regulations in line with the Pereda decision, even where the regulations clearly contradict what the ECJ ruled in that case. Employers who have been intending to rely on a strict interpretation of the regulations to refuse the carrying over of holiday in this sort of situation may wish to keep an active watch on developments in this area.

Case ref ET 1809311/2009

Equality Bill amendment on default retirement age is scrapped again

An Equality Bill amendment calling for the default retirement age (DRA) to be scrapped by the end of next year was withdrawn for the second time yesterday after the Leader of the House of Lords said the government would take action on the DRA "as soon as reasonably practical".

Liberal Democrat peers Lord Wallace and Lord Lester had called for a 'sunset clause' to be added to the Bill so that, if the government failed to remove the DRA of 65 by 2011, it would be abolished through the equality legislation.

But, following the reassurances from the Leader of the House, it was withdrawn. Lester was forced to withdraw a previous amendment to the Bill calling for the DRA to be removed immediately, because the Lords ruled they should wait for the government review on its usage, due this summer.

Rachel Dineley, head of the diversity and discrimination unit at law firm Beachcroft, said it was important that time be given for employers to adapt to any change to the DRA, warning that a failure to do so would inevitably lead to confrontation and litigation, which could otherwise be avoided.

"It will undoubtedly take time to put in place the various measures that many employers may need to take to cater for what will be, in some respects, a radical development in employment practice," she said.

"There is a great deal to consider, including such issues as the potential cost – for example, insurance benefits - for those working beyond 65, and performance management in respect of those who want to work on when they would otherwise have been graciously left to retire."

New Employment Law changes stack up as a general election looms

It’s difficult to recall a year when we haven’t been swamped with employment law proposals – some dictated by EU law; some by the domestic politics of the day. A whole host of government consultation documents are out at the moment and it’s hard to imagine them disappearing, even if there’s a change at Number 10. Whoever is in power, the proposals don’t go away. Family-friendly policies, for example – previously somewhat neglected by the Tories – now look likely to be part of their election manifesto.

And, of course, there’s case law. Large numbers of equal pay cases are still being pursued, mainly in the public sector. Since many are being sent to the higher courts, they are likely to cost many millions of pounds in taxpayers’ money.

Disability law continues to be affected by Lewisham v Malcolm (2008 UKHL 43), which emasculated the right to claim for disability-related discrimination. The court held that, where a disabled person was treated the same way as someone without a disability for a reason related to the disability, no discrimination took place. Later courts tried to mitigate Malcolm’s consequences by focusing on the duty to make reasonable adjustments.

The Equality Act 2010 will replace disability-related discrimination with negative treatment owing to disability – eg, disciplining employees for absences caused by their disability. The act will introduce indirect disability discrimination too, while Parliament is considering a clause to make it harder for any recruitment documentation to ask questions about a candidate’s health.

Religious discrimination continues to exercise the courts. London Borough of Islington v Ladele (2009 EWCA Civ 1357) concerned a registrar’s unwillingness to conduct civil partnership ceremonies, for example. In this case the court held that the council’s indirect discrimination was justified. The EAT did the same in a case about a relationship counsellor who refused to work with same-sex couples (McFarlane v Relate, UKEAT/0106/09). It held that there was no discrimination against someone banned from wearing a cross at work (Eweida v British Airways, UKEAT/0123/08, confirmed by the Court of Appeal) but also that “belief in climate change” may amount to a philosophical belief (Grainger plc v Nicholson, UKEAT/0219/09).

In Osborne Clarke Services v Purohit (UKEAT/0305/08) the EAT held that refusing an Indian applicant for a job because he had no right to work in the UK was racial discrimination even though it was contrary to the Asylum and Immigration Act 1996. This act makes an “offer” of employment conditional on the person’s ability to work in the UK. It did not apply at the initial shortlist and interview stage. This is an odd decision, and the legislation did not provide justification, since the employer could have applied to become a sponsor.
So, election or not, it appears to be business as usual in employment law.



Proposed changes
- Default retirement age The government has brought forward its review by a year in light of the Heyday judgment. The age is likely to rise from the current 65 years.
- Parental leave An EU directive has extended the right to unpaid leave to four months. The UK should implement this within two years.
- National minimum wage There is an ongoing consultation on an increase for apprentices.
- Bank holiday There are plans for an extra day on 5 June 2012 to celebrate the Queen’s diamond jubilee (the late May holiday would be moved to 4 June to create a long weekend).



Definite changes
- Public interest disclosure From 6 April claimants making whistle-blowing allegations will be asked on the tribunal ET1 form whether they wish the issue to be referred to the appropriate regulator.
- Corporate manslaughter Guidelines recommending higher sentences for offences are now in force.
- Agency workers The regulations are published and due to be implemented by October 2011.
- Paternity leave New rules on extended paid period will be effective from April 2010, for fathers-to-be with babies due from 3 April 2011.
- Training A new right to request time off for training will apply from April 2010 in organisations with 250 or more staff, and from 2011 in all other organisations.
- Blacklisting Regulations making it unlawful to deny employment to people on a trade union blacklist are expected in “early 2010”.
- Fit notes “Fit notes” will replace GPs’ sick notes from 6 April.
- European works councils Regulations are being recast to fit the revised directive.
- Equality Act 2010 Two new codes relating to employment and equal pay are due to come into force with the act in October.