Discipline and grievance

The Advisory, Conciliation and Arbitration Service (ACAS) has issued a user friendly code of practice on disciplinary and grievance procedures in the workplace.

It was laid before Parliament in June and, if approved, should come into effect on 1 October. The code has been revised to take account of the new statutory disciplinary and grievance procedures that come into operation on the same date.

As well as giving practical guidance on the procedures, the code also advises on:

  • what is reasonable behaviour when dealing with disciplinary and grievance issues 
  • producing and using disciplinary and grievance procedures for the workplace 
  • a worker's right to bring a companion to grievance and disciplinary hearings 
    Though it does not have statutory force, employment tribunals will take the code into account when considering relevant cases. To access the code, go to www.acas.org.uk/publications/pdf/CP01.2.pdf (PDF file).

 

Thompsons' own guide to the new disciplinary and grievance procedures will be issued with the October edition of LELR.

Tribunal applications

The Employment Tribunals Service (the admin arm of the tribunal service) has produced its 2003-04 Annual Report and Accounts, showing that: 

  • 115,042 applications were registered in 2003-04 compared to 98,617 for the year before 
  • 33% of claims were for unfair dismissal; 18% for unauthorised deductions; 17% for sex, race and disability; 10% for the working time directive; 7% for breach of contract; 4% for redundancy pay; 3% for equal pay; and 8% for other claims 
  • the maximum award for a race discrimination claim was £635,150; for sex discrimination £504,433; for disability £173,139; and for unfair dismissal £113,117 
    To access the full report, go to www.ets.gov.uk/annualreport2004.pdf (PDF file).

Information and consultation

In July the DTI published draft regulations on the introduction of the Information and Consultation Directive, along with guidance for applying them.

The directive establishes a general framework for businesses for informing and consulting their employees, and must be in operation in the UK by March next year. The agreement allows the UK to restrict application of the directive in the first instance to businesses with 150 or more employees. After two years it will also apply to businesses with 100 or more employees, and a year later to those with 50 or more employees.

The directive will give employees new rights to information and consultation. Previously these were limited to consultation about collective redundancies, transfers of undertakings (TUPE), and health and safety, and in large multinational companies through European Works Councils.

In future, employees will have a right to be informed about the business's economic situation, informed and consulted about employment prospects, and about decisions likely to lead to substantial changes in work organisation or contractual relations, including redundancies and transfers.

To access the regulations and draft guidance, go to www.dti.gov.uk/er/consultation/proposal.htm.

Annual reports

A number of organisations produced their annual reports at the end of July: 

  • To access the annual report from the Commission for Racial Equality, go to www.cre.gov.uk/publs/cat_annrep.html 
  • To access the annual report from the Equal Opportunities Commission, go to www.eoc.org.uk/cseng/abouteoc/annualreport2004.pdf (PDF file) 
  • To access the annual report from the Disability Rights Commission, go to www.drc-gb.org/newsroom/ newsdetails.asp?id=697§ion=4 
  • To access the annual report from the Advisory, Conciliation and Arbitration Service, go to www.acas.gov.uk/publications/pdf/Acas_04_AR.pdf (PDF file) 
  • To access the annual report from the Central Arbitration Committee, go to www.cac.gov.uk/cac_2_annual_report/annual_report.htm.

Disability decision

In Nottingham County Council v Meikle (IDS Brief 762) the Court of Appeal has answered two questions in relation to disability discrimination claims: 

  • whether a claim of constructive dismissal can be lodged under the Disability Discrimination Act (DDA) 
  • if the duty to make reasonable adjustments extends to making adjustments to a contractual sick pay policy.

As a result of a degenerative condition, Ms Meikle became visually impaired. Her employers failed to make suitable adjustments, so she went on long term sick leave. After six months her pay was reduced by half, in accordance with the contractual sick pay policy.

Constructive dismissal

Ms Meikle claimed constructive dismissal and said that the reduction in her pay amounted to less favourable treatment under the DDA on the grounds of her disability. She also said that the Council had failed to make reasonable adjustments to the pay policy in the light of her disability.

The Court of Appeal said that the definition of dismissal in the DDA does cover constructive dismissal (overturning the previous decision of an appeal tribunal).

Time limit adjustment

This is useful in terms of time limits in that it means that the three-month time limit for lodging tribunal applications will run from the date of dismissal, not the date of the prior incidents that led to the resignation.

Application of the sick pay policy

The court then considered whether the application of the sick pay policy breached the DDA. It said that the duty to make reasonable adjustments could include a duty to consider paying employees during sick absence periods (even if they are only contractually entitled to reduced pay or SSP), where their failure to carry out reasonable adjustments caused the sick leave in the first place.

No injury to feelings

The House of Lords has confirmed in the case of Dunnachie v Kingston upon Hull City Council (IDS Brief 762), that the compensatory award for unfair dismissal cannot include an element for injury to feelings.

This overturns the decision of the Court of Appeal (see LELR 87) which had said that non-pecuniary losses such as injury to feelings, aggravated and exemplary damages can be included as part of the compensatory award.

Their Lordships have thereby returned to the position that had survived for more than 30 years since the decision of the National Industrial Relations Court in Norton Tool Co Ltd v Tewson.

Tribunal chair could be biased says EAT

The employment appeal tribunal (EAT ) has held in Breeze Benton Solicitors v Weddell that the chair of a tribunal, who was alleged to have been critical of a litigant in earlier proceedings, could be seen as biased if he sat in another case involving the same litigant.

The solicitors said that the tribunal chair had criticised the firm fifteen months earlier when one of two partners defended an unlawful deductions claim. The firm made a complaint to the Lord Chancellor at the time. When the firm appeared again before the tribunal, it was allocated the same chair.

The solicitors formally asked for the chair to be excused on grounds of apparent bias. The tribunal unanimously refused, arguing, among other things, that the two wing members could outvote the chair.

The EAT held that it is not appropriate to argue that the chair is only one of three members with an equal vote, given that he or she is the legally qualified and presiding member of a tribunal of three members. It also held that because the solicitors had complained to the Lord Chancellor's Department about the chair's conduct, it was inappropriate that he should sit in this case.