Employment Law Update

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(No Transcript)
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Employment Law Update

• Statutory Discipline Grievance Procedures

Paul BogleUniversity Solicitor
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What I will be talking about

• What are the procedures easy as 1-2-3?
• Where is CCCU and what are we doing?
• One year on Case law

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The Procedures Easy as 1-2-3?

• Employment Act 2002, Schedule 2, introduced
  minimum statutory dispute resolution procedures.
• Fleshed out by 2004 Dispute Regulations
• Requirements for all employers since1 October
  2004

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The Procedures Easy as 1-2-3?

• Intention behind the changes minimum safeguards
  to all employees linked to contract, encourage
  more dispute resolution, discourage claims
• Find at www.dti.gov.uk/resolvingdisputes

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Standard Procedure Easy as 1-2-3?

• Put it in Writing
• The employer must put the reasons for
  considering disciplinary action or dismissal in
  writing to the employee. Similarly, the employee
  must put the grievance in writing to the employer

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Standard Procedure Easy as 1-2-3?

• 2. Meet and DiscussA face-to-face meeting
  between employer and employee must occur to
  consider the proposed disciplinary
  action/dismissal on the employees grievance.
  Both parties should take all reasonable steps to
  attend.After the meeting, the employer must
  inform the employee of its decision and the right
  to appeal

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Standard Procedure Easy as 1-2-3?

• 3. AppealAn appeal meeting if required.
  This may happen after sanctions have already been
  imposed. Following the appeal, the employer must
  inform the employee of its decision in writing

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Standard Procedure Easy as 1-2-3?

• Applies to all Dismissals except
• Some collective or constructive dismissals
• Some gross misconduct dismissals
• Where employment cannot continue for reasons
  beyond anyones control

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Standard Procedure Easy as 1-2-3?

• Applies to all disciplinary action except oral
  and written warnings and suspension on full pay.
• Applies to all grievances except where the
  employee is no longer in the employment of the
  employer

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Modified Procedure for DismissalsEasy as 1-2?

• Put it in Writing
• Send the employee a written explanation of the
  alleged misconduct that led to their dismissal
  including the evidence for this decision and the
  employees right to appeal.

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Modified Procedure for DismissalsEasy as 1-2?

• Appeal
• - If the employee wishes to appeal, they must
  inform the employer
• - Invite the employee to a meeting to discuss the
  appeal
• - Give the employee your final decision after the
  meeting

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Modified Procedure for GrievancesEasy as 1-2?

• Post employment grievances
• Parties agree to follow modified procedure or it
  is not possible to complete a step in the
  procedure

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Modified Grievance Procedure (two step process)

1. Put it in WritingThe employee must send a
   written explanation of their grievance to the
   employer stating the basis for their complaint
2. AppealThe employer must set out their response
   in writing and send it to the employee

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Underpinning Requirements

• Each step must be taken without unreasonable
  delay
• The timing and location of meetings must be
  reasonable
• In the case of an appeal meeting, there should be
  a more senior manager than attended the first
  meeting
• The employee has the right to choose to be
  accompanied to both meetings by either a
  colleague or a trade union official

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Consequences of Non-compliance

• Penalties if the Employer fails to follow the
  procedures
• Any dismissal becomes automatically unfair
• For dismissal, a mandatory minimum of four weeks
  pay is awarded to the employee
• Any compensatory award is increased by a minimum
  of 10 up to a maximum of 50

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Consequences of Non-compliance

• Penalties if the Employee fails to follow the
  procedures
• Any award they are adjudged to receive is reduced
  by a minimum of 10 up to a maximum of 50
• If the employee wishes to take a
  grievance/complaint to a Tribunal, they must
  first have sent a complaint in writing and then
  waited 28 days before issuing an ET claim,
  otherwise the claim will be dismissed

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Remember

• Simply following the procedures does not
  guarantee that any dismissal which follows will
  be fair
• There must still be a fair reason for the
  dismissal and a fair procedure followed,
  regardless of the minimum requirements

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Where are CCCU?

• Existing grievance procedure what do you think?
• Dismissals Appeal to GB
• FT workers not all covered
• Senior posts
• Appeal suspends dismissal

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Proposals

• Streamlined grievance procedure
• Afford appeal to senior posts
• Remove suspension anomaly
• Appeals against dismissal to VC save for
  exceptions
• More senior manager/person at each step of
  process
• FT workers included

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One Year On

• Shergold v Fieldway
• Concerned the requirement on an employee to set
  out a grievance in writing before being able,
  under the new provisions, to bring proceedings in
  the Tribunal
• The facts

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One Year On

• Shergold v Fieldway (cont.)
• The decision
• Mrs Shergolds letter of resignation raised a
  complaint about her manager. She did not have to
  raise identical complaints in the Tribunal,
  providing there was material similarity
• The letter of resignation did not need to refer
  to the statutory procedure or mention the
  Employers grievance procedure to be treated as a
  grievance in writing for the purposes of the
  legislation

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One Year On

• Shergold v Fieldway (cont.)
• Complaints raised in the exit interview