-------------------------
by Charles Price, LLB.(hons) LLM, barrister
Pendragon Chambers,
Swansea
SA1 5RG
Tel: (01792) 411188
Fax: (01792 411189
DX 39572, Swansea
www.charlesprice.net
----------------------------------------------------------------------------
----------
Charles Price
practices in Respondent and Applicant work in England and
Wales. This e-mail is for academic purposes only. Legal considerations must
be looked at in the light of the particular circumstances and it may be wise
to seek legal advice.
----------------------------------------------------------------------------
----------
1) 1st October 2004 - 'Big Friday' - The start of a series of articles on
the new Statutory Greivance/disciplinary procedures
2) EAT Costs 'More Likely' reforms to EAT procedure considered
3) Whistle Blowing and 'injury to feelings awards'
4) Free Company Policy Addition - This week: e-mail policy!
5) Occupational Stress - 'Hatton' Overruled
6) European Football Sees Change in Sickness Policy
1)1st October 2004 - 'Big Friday'
-----------------------------------------
There are what
many perceive as cataclysmic changes looming in the field of
employment law, which the government hope will reduce the number of cases
actually reaching an employment tribunal. In essence, these involve the
employee being compelled to use a statutory grievance procedure before
seeking recourse to an employment tribunal and secondly, the adoption by
employers of correct disciplinary procedures. The new law is extensive and
for that reason I am writing a series of articles on the new rules being
introduced by the Employment Act 2002 and regulations under it, the
Employment Act 2002 (Dispute Resolution) Regulations 2004 SI 2004/752). In
this article I start with a discussion of the new grievance procedure.
New Grievance Procedures
At the moment,
it is not statutorily required for employers to have formal
grievance and disciplinary procedures, although in common law it is required
if an employer is to demonstrate that his action in dismissing an employee
is a reasonable one. The only statutory mention of a grievance procedure
(ERA 1996 s.3(3) outlines that an employer who operates a grievance
procedure must if he has 20 or more employees include details of it in the
written particulars of employment he is obliged to give employees. Whether
he has a formal grievance procedure or not every employer, regardless of
size, must include in every statement of particulars of employment a note of
the person to whom an employee can apply for the purpose of seeking redress
of any grievance relating to his employment and the manner in which any such
application should be made (ERA 1996 s.3(1)(b)(ii)).
>From 1st October
2004 the Employment Act 2002 and regulations under it, the
Employment Act 2002 (Dispute Resolution) Regulations 2004 SI 2004/752) will
attach greater importance to disciplinary and grievance procedures. As from
1st October 2004 all employers, regardless of size, are obliged to operate
minimum statutory grievance procedures and the small employer exemption from
the need to provide details is abolished (ERA 1996 s.3(3) is repealed under
the Employment Act 2002 s.36, with s.54 and schedule 8).
Employees should
be aware that from the 1st October 2004, they will face a
harsh financial penalty will if they do not take advantage of the statutory
grievance procedure process introduced under Employment Act 2002. From that
date, unless the (statutory) minimum grievance procedure has been used in an
attempt to agree an "out-of-court" settlement, an employee (or an
ex-employee) is normally disqualified from bringing an unfair dismissal
claim, or most other claims, in an employment tribunal (Employment tAct 2002
s.32). Under s32(3) An employee shall not present a complaint to an
employment tribunal under a jurisdiction to which this section applies if
(b) less than 28 days have passed since the day on which the requirement was
complied with. If an employee does not qualify to bring a claim for unfair
dismissal (e.g. because he or she has less than one year's service) there is
no penalty if the procedure is not followed.
The new law is
of course bad news for those advocates who like the cut and
thrust of advocacy in employment tribunals. It must be asked, however
whether this new law will have the desired impact of cutting down the number
of employment cases reaching the tribunal, after all in common law (see the
'Polkey' case) especially with the larger employers a duty already exists to
run fair internal disciplinary procedures where an employees' complaints and
defences must be heard.
The Government
expects that as a result of the new law, results in many more
cases will be settled at an early stage. The employment lawyer's role would
become more of an advisory one if this becomes the case. In my view, the new
law will have minimal effect but may 'knock out' those constructive
dismissal claims where the Applicant has acted in haste without thinking
about mediation. Otherwise, the change is a cosmetic one as in my experience
sadly employers often like to be seen to employ disciplinary and grievance
procedures but have often made their minds up about a dismissal before their
application.
Time Limits
>From 1st October
2004 time limits for making applications to an employment
tribunal are extended to allow proper discussion between employer and
employee in implementing the grievance procedure.
The standard grievance procedure has three main elements:
· a written grievance by the employee;
· a meeting; and
· an appeal.
Circumstances in Which the Grievance Procedure Does Not Need to be Followed
Where the employee
is no longer employed, the employee has set out the
grievance in writing and sent it to the employer and, since the end of
employment, it has ceased to be reasonably practicable for the employer or
employee to comply with the meeting or appeal requirements (e.g. because of
illness).
Where is it not
practicable for a party to start the procedure or comply
with a subsequent requirement of the procedure within a reasonable period,
for example because the employee is in hospital.
If an employee
cannot attend a meeting for an unexpected reason (e.g. sudden
illness), the employer must rearrange the meeting. If the employee cannot
attend the rearranged meeting for a reason that was unexpected when that
meeting was arranged, the employer may abandon the procedure.
Procedural Fairness
S34 (2) Subject
to subsection (1) (that the failure to comply with the
procedure is wholly attributable to the employer) failure by an employer to
follow a procedure in relation to the dismissal of an employee shall not be
regarded for the purposes of section 98(4)(a) as by itself making the
employer's action unreasonable if he shows that he would have decided to
dismiss the employee if he had followed the procedure.
2. EAT Costs 'More Likely' in the Event of an Amendment or an Adjournment
------------------------------------------------------------------------
The 1st of October will also see the emergence of a new set of rules for the
Employment Appeals Tribunal. The DTI is consulting on changes to the EAT
Rules of Procedure 2001, which if adopted will allow costs to be more
readily available in that forum. The proposals involve the re-wording of the
costs provisions, to make costs more likely in the event of an amendment or
an adjournment caused by a party. The rules will not introduce a right to
recover costs if the appeal was 'misconceived' as is the case in the ET but
will allow the EAT to summarily assess costs without the £10,000 cap seen
in
the ET. The Eat, it is proposed will also be able to make wasted costs
orders against representatives, and award costs to litigants in person.
One controversial
element to the proposals is the fact that any appeal to
the Eat will have to be made on the date the decision is made rather than
when the written reasons are received. This will mean that an appeal may
have to be lodged by the aggrieved party without an opportunity to examine
the written reasons for the offending decision. Other points subject to
consultation are:
1) Introducing an overriding objective;
2) A different
appeal process - If the judge or registrar thinks the appeal
has no reasonable prospect of success, there will be permission to appeal
orally and then the judge is to consider the position on paper only. If that
fails and permission is not given the appellant must apply to the Court of
Appeal.
3. Free Company
Policy Addition - This Week: E-mail Policy!
-----------------------------------------------------------
This is an example
of an e-mail policy, obviously each client has different
requirements, which have to be taken into account when drafting. The Data
Protection Act 1998 and The Regulation of Investigatory Powers (RIP) Act
2000 have an important influence when drafting such policies but
Organisations should cross-reference any computer use policy with other
relevant policies, imcluding, the handling of confidential information, use
and storage of personal data, consultation and communications at work,
training, equal opportunities and harassment, and discipline and grievances
at work. All employees should sign the policy in order to indicate their
knowledge of it.
Email Usage Guidelines
[Company Name]
reserves the right to access your organisation email account
and messages at any time, however you will be informed if your email account
is accessed. [Company Name] shall wherever possible not access emails that
are clearly personal in nature. However shall not be liable for any breach
of privacy should any emails of a personal nature be found and accessed by
employees of the organisation or third parties authorised by the
organisation to access your email account. Any monitoring of staff e-mails
will be connected with a specific investigation of mal practice or crime.
Emails are Permanent
It is a common
misconception that emails are a temporary form of
communication, similar to a phone call. The reality is that any email
message can be traced back to its original sender and to all recipients of
the message. Copies of emails not only reside on the network and PC of the
sender and recipient, copies also reside with the Internet Service Provider
(ISP) through which they were sent. Even if every party in the chain deletes
an email and its attachment, (if applicable) sections or the entire email
and attachment can be reconstructed from the hard drives of the PCs and
fileservers on which they originally resided using specialist software.
Proper Deletion of Emails from your PC
To delete a message
properly it should be moved to the bin or trash folder
of your email software and then deleted from the bin or trash folder. Moving
the message to your bin or trash folder will not automatically remove the
email from your PC.
Email Signature File
All emails, (including
replies and forwarded emails) should contain the
standard email signature of the organisation. From time to time you may be
requested to alter or update your email signature file, if requested this
should be carried out immediately. If your email signature contains your
personal contact information such as office telephone number, mobile number
or pager you should ensure that these details are correct and kept up to
date. Outgoing e-mails should include a disclaimer to be agreed with the
employer.
Email Etiquette
You should never
send abusive or rude emails or attachments, even if you are
responding to such an email received by you. Such abusive e-mails can
constitute a criminal offence and depending on the nature of the abuse,
gross misconduct. This includes emails that attack the recipient directly or
refer to a third party or organisation. You must never send emails or
attachments that promote the following types of content:
i) sexually explicit materials.
ii). violence.
iii). discrimination based on race, sex, religion, nationality, disability,
sexual orientation, or age.
iv). illegal activities or violate intellectual property rights.
Never send emails containing confidential or sensitive information without
first checking that the recipient is prepared to receive such information
via email. Such emails should be encrypted to ensure that they cannot be
readily opened and read by anyone other than the intended recipient. If you
wish to send a large attachment(s) via email you should contact the
recipient before sending the email to ensure that they are prepared to
receive it and that their email and internet connection are able to
effectively download large attachments.
You must not use your email facility to exceed your authority, or use it to
conduct business other than that of the organisation. Do not send, resend or
forward emails that list a large number of recipients in the CC field as
this will reveal each recipient's address to fellow recipients and will
breach their privacy.
For a further
briefing of this area, ACAS has produced the definitive guide
on Internet and e-mail policy:
http://www.acas.org.uk/publications/AL06.html
Practice Matters
----------------
There are now employment contract precedents available on
www.charlesprice.net
The following
should feature in the most up to date contracts.
All topics require regular updating in order to comply with employment
legislation.
1.1 Contract of
Employment
1.2 Termination Policy
1.4 Equal Opportunities
1.5 Health and Safety
1.6 Confidentiality and Restrictive Covenants
2.0 Office Hours
of Work
2.1 Annual Leave
2.2 Maternity Leave and Notice for Return to Work after Maternity Leave
2.3 Paternity/Parental Leave Including Adoption Leave
2.4 Bereavement/ Leave Other Than Holiday
3.0 Remuneration
and Expenses
3.1 Salaries and Benefits Policy
3.2 Expenses Policy
4.0 Policies and
Procedures
4.1 Internet and Email Usage Guidelines for Workers
4.2 Disciplinary, Misconduct, Incapability and Grievance Procedures
4.3 Sick Pay Policy and Absence due to Illness or Injury
4.5 Substance Misuse Policy
5.0 Code of Conduct
5.1 Dress and Appearance
5.2 Data Protection
5.3 Access to Personnel Records
6.0 Redundancy
7.0 Facilities
7.1 Personal Phone Calls
7.2 Premises and Equipment Security
7.3 Smoking
7.4 Lighting
7.5 Office Tidiness
7.6 Use of Company Equipment
7.7 Work Mobile Phones
---------------------------------------------------------------------
4. Whistleblowing
Developments - Employers Beware
--------------------------------------------------
A worker who has made a protected disclosure is protected from detriment by
act or omission on the grounds that they have made this disclosure. A
dismissal for making a protected disclosure is automatically an unfair
dismissal and therefore the usual qualifying period of service (1 year) does
not apply.
The protection would be available to an employee who is made redundant and
where the reason for which the employee was selected for dismissal was
because they had made a protected disclosure. The whistleblowing legislation
is comparable with discrimination law in that the qualifying period of
service is disapplied and there is no monetary limit on the amount of
compensation that can be awarded. In addition, an injury to feelings award
is obtainable (a ruling from the House of Lords is expected this month on
this type of award in unfair dismissal cases).
Compensation for Injury to Feelings
Up until now the compensatory awards for unfair dismissal cases have
principally been restricted to loss of earnings. However, in the recent EAT
case of Dunnachie v Kingston Upon Hull City Council (2004), it was held that
compensatory awards for unfair dismissal can now include other loss such as
injury to feelings.
In respect of discrimination (eg sex, race, disability) statute explicitly
provides that compensation can be awarded for injury to feelings.
In the recent whistleblowing case, Virgo Fidelis Senior School v Boyle, the
EAT held that the Vento guidelines apply when considering compensation
payable to a whistleblower who had been subjected to detriment for making a
protected disclosure. The EAT held that the Tribunal were in error in not
having regard to the Vento guidelines. Further, they noted that the
detriment suffered by whistle-blowers should normally be regarded by
Tribunals as a 'very serious breach of discrimination legislation'. The EAT
in Virgo believed that the Tribunal were in error in coming to the
conclusion that they did not have the authority to make an award of
aggravated damages and accordingly awarded £10,000 under this head of
damages to the claimant. Due to the extensive protection whistle blowers
receive employers should always be alert to whether a worker is raising what
could be classified as a protected disclosure.
5. Occupational
Stress - Hatton Overturned
-------------------------------------------
Judgment
http://www.publications.parliament.uk/pa/ld200304/ldjudgmt/jd040401/barber-1
..htm
In Barber v Somerset County Council, overturned the Court of Appeal's
decision made on his case in 2002 in Hatton v Sutherland. The decision is
well worth reading. I have noted a few points employers should look out for:
Employers must keep up-to-date with the developing knowledge of occupational
stress and the probable effectiveness of the precautions that can be taken
to meet it.
Once an employer
knows that an employee is at risk of suffering injury from
occupational stress, they are under a duty to do something about it. This
duty continues until something reasonable is done to help the employee.
Employers' complaints
should be listened to sympathetically.
Monitoring employees who are known to be suffering from occupational stress
is mandatory.
Employers should look into how they can relieve the individual's workload in
order to combat stress.
An "autocratic and bullying style of leadership" which is "unsympathetic"
to
complaints of occupational stress is a factor that courts can take into
account in deciding whether there has been a breach of the employer's duty
to an employee.
The statutory
duty to carry out risk assessments is also recognised by the
judgement.
6. European Football
Sees Change in Sickness Policy
----------------------------------------------------
'Tesco' has decided to only to pay employees after 3 days of sickness leave.
In law employers only have a duty to pay employees on the 4th day of
sickness. Employers should be aware however that with disabled employees the
employer has a duty under the Disability Discrimination Act 1996 to make
reasonable adjustments and it is likely that a failure to pay a disabled
employee for the first few days of illness would be deemed a failure to
adjust under the Act. The general practice for certification is that for the
first three days of absence from work no formal certificate is required. For
the next three days (including weekends) self-certification on form SC2 is
required
---------------------------------------------------------------------------
This e-mail is
sent to over 500 employment lawyers and HR Professionals.
Please contact me if
another employment
lawyer would like to subscribe to this service or if you
have any other
comments! To Unsubscribe
please return the e-mail with 'unsubscribe' in the
heading.
----------------------------------------------------------------------------
---------------------------------------------------------------------
Charlie Price held the positions of Head of Employment Law at both
Sheffield and Bristol City Councils and practices in employment and personal
injury law across England and Wales.
------------------------