Statutory Dispute Resolution Local Government Staff Commission 9 February 2011

Topics to be covered Employment (no.2) Bill –Repeal of statutory grievance process –Determination of tribunal claims without a hearing –Restrictions on publicity in tribunal hearings –Amendments to the power of LRA to conciliate before and after commencement of tribunal proceedings –All IT jurisdictions can be dealt with by FET –Enforcement of LRA settlements and tribunal awards –Introduction of statutory right to request training ? Draft LRA code of Practice on disciplinary and grievance procedures Statutory right to be accompanied

Employment (no.2) Bill Repeal of statutory grievance process: –Employee will not have to pursue internal grievance before lodging tribunal claim; –Provisions permitting extensions to time limits for lodgment of tribunal claims due to internal dispute resolution procedures are repealed. –Tribunal will retain power to increase or decrease award if employer or employee acts unreasonably in not following internal grievance procedure –Reasonableness will take into account compliance or otherwise with good practice as set out in new LRA code of practice on grievance and disciplinary procedures

Employment (no.2) Bill Determination of tribunal claims without a hearing –Where the parties consent in writing; or –Where no Response to the claim has been lodged, or the Response has not been accepted; or –Where the respondent does not contest the Claim

Employment (no.2) Bill Restrictions on publicity in tribunal hearings –Restricted reporting orders where: proceedings involve allegation of sexual misconduct Disclosure of certain information would put a person or property at risk Interests of justice require restriction – –To prevent people being deterred from lodging or participating in proceedings eg disclosure of sexual orientation. –Prevent identification of individuals affected by or making an allegation concerning a sexual offence

Employment (no.2) Bill Amendments to the power of LRA to conciliate before and after commencement of tribunal proceedings: –Before – duty replaced by discretionary power to conciliate and no requirement on LRA to give reasons for not providing the service. –After – no time limit on the LRA conciliation service

Employment (no.2) Bill Enforcement of LRA settlements and tribunal awards –Where resolution involves payment of a sum and either discontinue claim or refrain from commencing claim no requirement for county court order to enforce. If challenged by application that sum not recoverable under general law of contract then the sum cannot be recovered whilst application pending. –All other resolutions require a county court to enforce.

Employment (no.2) Bill All IT jurisdictions can be dealt with by FET

Employment (no.2) Bill Introduction of statutory right to request training? Similar framework work to the flexible work request In GB introduced for organisations with 250+ employees. Reconsideration as to its repeal or introduction to less than 250 due to economic climate Regulatory impact accompanying Bill –administrative costs to employers £1.2m –Accommodation of requests - £15.4m –Cost to employees £100 per person

Employment (no.2) Bill Introduction of statutory right to request training? –Distinction between employers with 250+ and less than 250 employees for implementation ? –26 weeks continuous service (250+) –any type of study or training that employee believes will improve their effectiveness in their organisation and the performance of the business. – application must be made "for the purpose of enabling the employee to undertake study or training (or both)". –requests can be for time off, but also that the employer organise, provide or pay for training.

Employment (no.2) Bill Introduction of statutory right to request training? Valid requests under the new right would include: a request to be given one day off a week to attend a further education college; a request that the employer facilitate "on the job" training in relation to particular work; a request that the employer allow the employee to work part time while he or she completes a degree course; a request that the employer pay the employee's college fees; and a request that the employer design and implement a comprehensive training programme for the employee.

Employment (no.2) Bill Introduction of statutory right to request training? The application may relate to more than one description of study or training. Requests can be to undertake accredited programmes leading to the award of a recognised qualification, or for unaccredited training to help the employee develop specific skills relevant to his or her job, workplace or the business.

Employment (no.2) Bill Introduction of statutory right to request training? The training can be: undertaken on the employer's premises or elsewhere, including at the employee's home; delivered during the time the employee is working, or separately; provided or supervised by the employer, a local college or training provider, or undertaken without supervision; and undertaken within or outside the UK.

Employment (no.2) Bill Introduction of statutory right to request training? Employee's responsibilities For a request for in relation to study or training to be valid, it must be in writing ( is acceptable) and must stipulate: that it is an application to make a statutory request in relation to study or training; the date of the application; whether or not the employee has made a previous application in relation to study or training, and if so when and how the last application was submitted; the subject matter of the proposed study or training; where and when the proposed study or training would take place; who (if anyone) would provide or supervise the study or training; to what qualification (if any) the study or training would lead; and how the employee thinks the proposed study or training would improve his or her effectiveness in the business and the performance of the business.

Employment (no.2) Bill Introduction of statutory right to request training? Where the employer agrees to an employee's request, the employee must inform the employer if he or she subsequently fails either to start or complete the agreed study or training, or decides to undertake a programme of study or training that differs from what was agreed.

Employment (no.2) Bill Introduction of statutory right to request training? Frequency of requests Employers are required to consider only one valid request from an employee in any 12-month period. Requests for additional information If, following a valid request in relation to study or training, the employer thinks that it needs additional information before it gives proper consideration to the request, it can ask the employee to provide further information. Invalid requests Any request that is not in writing, or that does not contain the required information, need not be dealt with under the statutory procedure. In this eventuality, the employer should inform the employee of the reason(s) why it considers the application to be invalid.

Employment (no.2) Bill Introduction of statutory right to request training? Employers' duties Employers are not obliged automatically to agree to a request in relation to study or training, but are under a duty to consider a valid request and adhere to a prescribed procedure. However, if the employer decides immediately to agree to the employee's request and provides written notification of such agreement to the employee within 28 days, no further procedure is required. Otherwise, the employer is under a statutory duty to: hold a meeting with the employee within 28 days of receiving a valid request for the purpose of discussing the request; grant the employee the right to be accompanied at the meeting by a fellow worker of the employee's choice; provide a written response to the employee within 14 days of the meeting, which must: –accept the employee's request; –confirm any compromise arrangement previously agreed with the employee at the meeting; or –reject the employee's request, providing a business reason and an explanation as to why this is relevant to the employee's application; grant the right of appeal where a request is refused.

Draft LRA code of Practice on disciplinary and grievance procedures The guidance and format remains very similar to the current Code Changes ? –More emphasis on equality principles –More emphasis on informal resolution and use of mediation and training of managers on how to to deal with problems informally –More clarity – eg. precautionary suspensions and cross examining witnesses –More balanced eg “reasonable” investigation rather than “investigate fully” –Review of disciplinary rules appears prescriptive rather than advisory

Draft LRA code of Practice on disciplinary and grievance procedures Provides guidance on the statutory disciplinary/dismissal procedures. Sets out best practice for grievance procedures even though statutory provisions repealed Employers should therefore continue to follow the Code where appropriate as its advice will be persuasive in tribunal hearings. Uplifts or reductions in compensation will be influenced by the standards set out in the Code irrespective of the repeal of the statutory grievance procedure

Draft LRA code of Practice on disciplinary and grievance procedures The guidance and format remains very similar to the current Code Changes ? –More emphasis on equality principles –More emphasis on informal resolution and use of mediation and training of managers on how to to deal with problems informally –More clarity – eg. precautionary suspensions and cross examining witnesses –More balanced eg “reasonable” investigation rather than “investigate fully” –Review of disciplinary rules appears prescriptive rather than advisory

Statutory right to be accompanied The companion may be a fellow worker, a full-time trade union official, or a lay trade union official certified by the union as having experience of, or having received training in, acting as a companion at disciplinary and grievance hearings. The request for a companion must be "reasonable". LRA Code states that it would not normally be reasonable for a worker to insist on being accompanied by a colleague whose presence would prejudice the hearing or who might have a conflict of interest. Nor would it be reasonable for a worker to request to be accompanied by a worker from a geographically remote location where someone suitable and qualified was available on site. The statutory right to be accompanied does not extend to legal representation. See however recent caselaw

Statutory right to be accompanied Kulkarni v Milton Keynes Hospital NHS Trust and Secretary of State for Health [2009] IRLR 829 CA, the Court of Appeal held that a doctor should be allowed to be accompanied by a lawyer at a disciplinary hearing in circumstances where he or she is facing charges that are of such gravity that, in the event they are proven, he or she will effectively be barred from employment in the NHS.

Statutory right to be accompanied R (on the application of G) v Governors of X School and Y City Council [2010] IRLR 222 CA, the Court of Appeal followed Kulkarni, and held that an employee should have been allowed to be accompanied by a lawyer at a disciplinary hearing in circumstances where a consequence of the hearing could be the addition of his name to the register of individuals deemed unsuitable to work with children. An appeal is pending before the Supreme Court.

Statutory right to be accompanied Kulkarni and R (on the application of G), the Court of Appeal held that art.6 of the European Convention on Human Rights, which gives individuals the right to a fair and public hearing, was engaged. In R (on the application of Kirk) v Middlesbrough Council and another [2010[ IRLR 699 HC, the High Court held that the employee was not entitled to legal representation at internal disciplinary proceedings, on the basis that art.6 was not engaged because the case concerned a private law matter and involved a standalone disciplinary issue, the potential consequences of which "came nowhere near the severity" involved in previous authorities.

Statutory right to be accompanied R v Down District council ex parte Fitzsimmons – high Court rejected the applicant’s petition for legal representation and decision of NICA awaited. Currently awaiting judgment of the Supreme Court