Dispute Resolution Dispute Resolution – Disciplinary, Dismissal and Grievances

Dispute Resolution Introduction & a reminder of the basics Effective 1 st October 2004 All employers (no minimum number of staff) All employees – but not “workers” (even though right to be accompanied applies to “workers” as well) All employees – no qualifying period of service “DDP” – disciplinary and dismissal procedures

Dispute Resolution Introduction & a reminder of the basics “As easy as 1,2,3” – according to the DTI  Put it in writing  Meet and discuss  Appeal

Dispute Resolution Automatic unfair dismissal if non compliance – one year’s qualifying requirement applies Compensation increased by 10% to 50% - but maximum of £55,000 still applies For unfair dismissal cases only, basic award increased to a minimum of 4 weeks (if employee has under 4 years’ service) Introduction & a reminder of the basics

Dispute Resolution Where the procedures do not apply The procedures do not apply where:  The Employee is suspended on full pay  The Employer is “contemplating” issuing a written or verbal warning, rather than a dismissal  Dismissal is as a result of:  unofficial or unprotected industrial action  where employment would be illegal  sudden unforeseen closure of workplace

Dispute Resolution Where the procedures do apply The disciplinary and dismissal procedures apply in many situations in addition to disciplinary, conduct & performance matters:  Failure to be successful in a probationary period (remember – no qualifying period of service)  Redundancy – other than multiple redundancies of over 20 employees  Retirement

Dispute Resolution Where the procedures do apply (cont’d) Demotion Business reorganisation, where there is termination and re-engagement, unless all employees in a category are terminated and re- engaged Non renewal of a fixed term contract

Dispute Resolution Probationers, short fixed term contract employees & retirees Probationers, employees with short fixed term contracts and retirees cannot bring a conventional unfair dismissal case:  The first 2 because less than a year’s service  The latter because over retirement age So, are you in the clear as far as these categories are concerned? NO!

Dispute Resolution The Scope of the Dismissal and Disciplinary Procedures Although most often discussed in the context of “conventional” unfair dismissal, Tribunals will examine if the DDP has been completed in cases brought under many other jurisdictions, and if not may increase any compensation by 10% to 50%

Dispute Resolution The Scope of the Dismissal and Disciplinary Procedures (cont’d) The list includes: Automatic unfair dismissal allegations (neither a qualifying period nor upper age limit apply) Sex, race, disability, religious or sexual orientation discrimination Breach of employment contract Equal pay Breach of Working Time Regulations Detriment in relation to Trade Union activities

Dispute Resolution Getting it wrong The DTI guidance states that there is no need to follow DDP for compulsory retirement of employees over retirement age:  Wrong!  Such an employee could bring any of the claims referred to on previous slide  As could unsuccessful probationers or employees with short fixed term contracts who are not re- engaged

Dispute Resolution Probationers, short fixed term contract employees & retirees Probably over-reaction to apply DDP to all such terminations But be aware that if there is any risk of a claim in an applicable jurisdiction, best to undertake DDP

Dispute Resolution Redundancies and Business Reorganisations DDP applies; but in practice in redundancy exercises there will be correspondence & meetings anyway, so compliance probable Remember appeals – awkward in termination & re-engagement exercises

Dispute Resolution The Procedures in Action In unfair dismissal claims, substantive fairness still required and normal rules apply:  Investigation  Separation of roles  Fair reason to dismiss  Fair & reasonable in all the circumstances Timing & location of meetings must be reasonable

Dispute Resolution The Procedures in Action (cont’d) Each step must be undertaken without unreasonable delay Meetings must be conducted so that employee is able to explain his case Employer must actively tell the employee about right to appeal Appeals should be conducted by a more senior person

Dispute Resolution Outcomes & scenarios An employee with over a year’s service is dismissed for medical incapability reasons. A comprehensive procedure is followed, with consultant’s reports etc, but the employer omits tell the employee that he has a right of appeal. The employee knows that anyway, and makes an unsuccessful appeal.

Dispute Resolution Outcomes & scenarios (cont’d) The Tribunal’s decision: Under normal rules, the dismissal is fair - failure to inform about appeal not enough to make it unfair. But – DDP is defective – so, automatic unfair dismissal. Reasonableness irrelevant. Calculation of award:  Basic award of 4 weeks minimum  Normal compensatory award based on losses  Increase compensatory award by 10% to 50%

Dispute Resolution Outcomes & scenarios (cont’d) Employee dismissed for conduct reasons, based on single allegation of insubordination. Employer follows DDP to the letter. Tribunal decides dismissal was outside band of reasonable responses, so dismissal unfair. But, since DDP complied with, normal compensation calculation with no enhancement.

Dispute Resolution Outcomes & scenarios (cont’d) The company wants a senior director to be made redundant immediately – going through a consultation exercise etc is not seen as feasible. You are asked to calculate what payment under a compromise agreement should be given, and you make a generous allowance, given that the employee will probably get another job soon. He is given the agreement, and his solicitor has now written to you claiming an extra 10% to 50% award. Do you have to pay this?

Dispute Resolution Grievance Procedures A mirror image of the DDP: Complaint in writing Meeting Appeal Most tribunal claims are barred unless the employee has lodged an internal grievance and waited for 28 days

Dispute Resolution Grievance Procedures The employee can bring a Tribunal claim after the 28 days if the employer has not resolved the grievance to his/her satisfaction Assuming Tribunal accepts the claim, ie the 28 day period has been complied with, any awards can be reduced by 10% to 50% if the employee has not complied with the procedures

Dispute Resolution Grievance Procedures Complex rules extend the period during which a Tribunal claim can be presented where there is a grievance being heard

Dispute Resolution ACAS Code on Disciplinary & Grievance Procedures The new version of the ACAS Code on Disciplinary and Grievance Procedures has been formally published by The Stationery Office. It has been updated to incorporate the statutory dismissal and grievance procedures which, with the ACAS Code, came into force on 1 st October (Adobe Acrobat required)

Dispute Resolution Role of Companion at Disciplinary Meetings Employment Relations Bill currently going though Parliament Likely to become law in 2005 Deals mainly with various Trade Union matters And, the companion’s role at disciplinary meetings is “clarified”

Dispute Resolution Role of Companion at Disciplinary Meetings (cont) “The employer must permit the worker’s companion to address the hearing to:  Put the worker’s case  Sum up that case  Respond on the worker’s behalf to any view expressed at the hearing The companion is permitted to confer with the worker during the hearing”

Dispute Resolution Dispute Resolution – Disciplinary, Dismissal and Grievances Questions and Conclusion Harry Sherrard