Archive for the ‘Statutory Procedures’ Category
By Emma - Thursday, July 3rd, 2008
The EAT has held in a judgment published yesterday that a grievance in writing expressly described as informal and not a statutory grievance can nevertheless be treated as a statutory grievance.
In this case the Claimant had raised a grievance stating specifically that that it was informal and not a statutory grievance. The Employment Tribunal held that it could not therefore be treated as a statutory grievance and that it therefore had no jurisdiction to hear the race discrimination claim.
However, the EAT upheld the Claimant’s appeal concluding that because the grievance was set out in writing and sent to the employer it met the requirements laid down for a Step 1 grievance letter and whether or not it was stated to be a statutory grievance did not affect that conclusion.
What the EAT left open was if it would be unjust to subject an employer to an increase in compensation if they did not deal with the grievance in these circumstances.
See here for more detail.
Posted in Statutory Procedures | No comments »
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By Philip - Tuesday, May 20th, 2008
The case reported here illustrates the difficulty Tribunals can get into when faced with two issues:
- The statutory dismissal procedure (aka rebarbative and soon to be redundant)
- The unrepresented Claimant.
In this case the Claimant had not put forward the claim that the statutory procedure was not followed in her ET1 but perhaps picked up on the idea during the hearing, following interventions by the Tribunal. The EAT in Scotland ruled that the right to appeal against dismissal only has to be communicated, but there is no requirement under the statutory procedure for such communication to be in writing.
Most employers would be best advised to wear belts and braces and communicate the right of appeal in writing in the dismissal letter. By putting the right of appeal in writing any subsequent point about what was and was not communicated during the meeting is neutered. Neutered points bear no fruit.
The EAT also makes some interesting observations about how parties without representation should be treated during the hearing.
Posted in Employment Tribunal Procedure, Redundancy, Statutory Procedures | No comments »
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By Sarah - Friday, May 2nd, 2008
Following the proposed changes to the statutory disciplinary and grievance procedures, ACAS have issued a revised Code of Practice. Consultation opens until 25th July so employers have your say here
Employment Tribunals will be using the final version for guidance so have your say now!
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By Emma - Thursday, May 1st, 2008
There have been two recent cases, one in the EAT and the other in the Court of Appeal considering various issues about the statutory dispute resolution procedures.
The Court of Appeal case (see here) found for the employee and held that a letter raising a grievance sent within the 3 month period following dismissal amounted to a non-statutory appeal against dismissal and thus extended the limitation period for bringing a claim for unfair dismissal. The Court of Appeal applied a broad definition to the term “grievance” on the basis that an employee will not approach the process with the technical knowledge of an employment lawyer.
The EAT decision (see here) considered the applicability of the modified grievance procedure and the level of detail required in a grievance raised using the modified procedure. Where the modified procedure is used the grievance is dealt with in writing only and the legislation requires the employee not only to set out the grievance but the basis for it (this is more detail that the standard procedure requires). It found (upholding the Employment Tribunal’s decision) that where a grievance under the modified procedure did not identify the basis of the claims which were subsequently lodged with the Tribunal, the Tribunal had no jurisdiction to hear the claims advanced.
Aren’t we pleased that these statutory procedures are going to be dispensed with (even, or perhaps particularly, we employment lawyers ….)?
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By Liam - Monday, March 31st, 2008
ACAS has announced that as from tomorrow it will offer conciliation services even after the end of the fixed conciliation period that applies to certain types of claim under the Employment Act 2002.
Fixed conciliation periods were introduced at the same time as the Statutory Grievance Procedure (SGP) and Statutory Disciplinary Procedure (SDP) under the Employment Act 2002. How long will it be before the SGP and SDP go the same way as fixed conciliation periods?
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By Philip - Wednesday, February 20th, 2008
Here is a link to a speech made by Pat McFadden, Minister of State for Employment Relations and Postal Affairs, to a recent ACAS CIPD conference.
The Postal Affairs part of that job title is curious. Does it cover love affairs carried out by letter? Or does it mean in charge of the post office? This government seems keen on funny job titles. The Department of Education is currently looking for a Head of Horizon Scanning. What does this mean? It did bring to mind an old joke about why weren’t civil servants allowed to look out the window in the morning……….because they need something to do in the afternoon. Anyway, I digress.
The speech acknowledges that the statutory procedures have not been a success owing to the law of unintended consequences kicking in, resulting in more claims not fewer.
The minister also acknowledges the important role of ACAS in resolving employment disputes and that the idea of time limiting ACAS’ involvement was counter productive.
The noise that could be heard during the minister’s speech was the sound of the clock going back to 2004 to pre- statutory procedure days. When the facts change, the department changes its mind and policy.
Posted in Statutory Procedures | 1 comment »
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By Sarah - Tuesday, December 11th, 2007
Those of you who read our Blog regularly will be familiar with the consultation which took place earlier this year concerning the statutory dismissal procedure.
Well the Employment Bill is currently before the House of Lords. You can read the full text here. The bill is not an Act of Parliament yet but if passed will repeal the statutory dispute resolution procedures. It will also repeal s98A of the ERA 1996 concerning procedural fairness. Instead, it will insert a new section 207A into the Trade Union and Labour Relations (Consolidation) Act 1992 which deals with a failure to follow the Codes. Those familiar with the Act will be aware that this is a reference to the ACAS Codes and any issued by the Secretary of State.
The proposed wording of s207A permits an uplift of upto 25% to awards for failure by the employer to follow the relevant Codes of Practice if the Tribunal considers it just and equitable to do so. Like the statutory dispute reolutuion procedure there is the same permitted percentage reduction if the employee is at fault. Now where have I heard that before!
The Bill also deals with enforcement of the national minimum wage.
Posted in Statutory Procedures, Unfair Dismissal | No comments »
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By Sarah - Monday, October 8th, 2007
So you have won at Tribunal and have an award in your favour, what do you do next? Well you ask for the money in the first instance and if it is not forthcoming then you need to transfer the Judgment to the County Court for enforcement.
You need to use a specific form and not issue a new claim as you already have Judgment. You then get your certificate of Judgment and can proceed to enforce it. This then becomes like any other CCJ. One way is the use of a High Court Sheriff, who like a baliff makes a demand for money. Alternatively, you may have to take more drastic steps to put a charge on their property and then try and force a sale or go for bankruptcy.
These are all things I used to do in a former life at my old firm but every now and again I have to dust off my skills for those employees whose employers will not see reason and pay what is now due. Of course delaying is not a good idea as interest and costs get added on and could amount to £1,000’s extra. We are about to do our second enforcement in two years so thankfully the demand for such services is limited.
Posted in Employment Tribunal Procedure, Statutory Procedures | No comments »
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By Sarah - Wednesday, October 3rd, 2007
We all know that the statutory dismissal and grievance procedures are under review and they have caused much controversy. Not least of all in the area of grievances as failing to submit a grievance within the requisite time period means that the Tribunal cannot hear your claim.
As a result the Tribunal have made a number of interesting decisions giving a very wide interpretation to what constitutes a grievance in order to allow employees to bring their claim before the Tribunal. Now a decision has been handed down by the EAT which whilst being common sense is more in favour of the employer.
In this case the EAT found that it goes too far to suggest an employer had knowledge arising from a meeting occuring after the date the grievance letter was sent. This meant that there was not a valid grievance letter in respect of sex discrimination. Whilst the Tribunal followed an earlier case which held that employers should take into account the factual background against which the grievance letter sent the Tribunal went to far in saying this included knowledge acquired after the event. You can read the decision of the EAT here
Posted in Sex/Race Discrimination, Statutory Procedures | No comments »
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By Sarah - Wednesday, September 26th, 2007
The Civil Service Appeal Board has issued a report which said that government departments are unlawfully sacking one in four civil servants costing the taxpayer £628,632. The report showed that standard dismissal procedures were not being followed.
This mirrors this firm’s experience of dismissals in the public sector in the last twelve months. We have acted for employees who have been unfairly dismissed without the procedure being followed from all walks of the public sector. Unfair procedures in redundancy, no dismissal procedure in others. Of course this is not unique to the public sector but perhaps we should expect a bit more for our money?
Share your views on the subject with us and your experiences.
Posted in Statutory Procedures, Unfair Dismissal | No comments »
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