The right to have legal representation at disciplinary?
April 14, 2010
A recent case (R v the Governers of X school and others) highlighted very specific occasions where an employee may have the right to be represented by a legal professional at an employer’s disciplinary hearing.
The case concerned G (represented by R), a teaching assistant at X school who was dismissed for kissing a 15 year old boy after a disciplinary hearing was held. In normal circumstances an employee is only allowed to be accompanied by a colleague or Trade Union official at a disciplinary hearing, however G felt that the school’s failure to allow them legal representation contravened their right to a fair trial under the European Convention on Human Rights (ECHR).
The case went through several stages and ended up at the Court of Appeal, where it was held that G’s right to a fair trial had been breached, and they should have been allowed legal representation. The reason for this is that the outcome of the trial had a direct effect on G’s ability to continue practicing their profession. The school had to give information to the Independent Safeguarding Authority (ISA) which decides whether to add people to a register of those who are unable to work with children. Because the outcome of the disciplinary would inevitably affect the ISA’s decision to add G to this register, it therefore had a direct effect on G’s ability to practice their profession, and so legal representation should have been allowed.
This is a rare case and legal representation would not be allowed in most disciplinary hearings; the right only applies to public sector professionals and is only relevant if the outcome could affect the individual’s future career. However it is worth remembering for future reference if such an instance may come up. If this does happen, it would always be advisable to seek legal advice before agreeing or rejecting a request for legal representation in a disciplinary hearing.
The ‘fit note’ has arrived
April 12, 2010
This month sees the arrival of long-debated new legislation and HR practice around employee sickness absence. The ‘fit note’ has replaced the previous ‘sick note’ from 6th April 2010.
The difference in this new note is that instead of stating that the employee is simply unfit for work full stop, the GP could instead indicate that the employee ‘may be fit for work’, meaning that he/she could be able to carry out some tasks, and with adjustments made by the employer, could attend work.
Adjustments that may be recommended include changes to working hours, different tasks or returning to work over a phased period. It is then up to the employer and employee to decide if this is reasonable. If the employer is not able to make the recommended adjustments, then this should be reviewed again after an agreed period of time.
The employee may decide that they are unable to return to work, even with the GP’s recommendations. The employer will have to meet and discuss this with the employee to see if a solution can be found. The employer may need to get further advice from occupational health.
GPs will still be able to declare an employee ‘unfit for work’ if they cannot recommend any adjustments that will enable the employee to return to work at that time.
Whilst many employers see this change as a really positive step, some are sceptical about how effective this will be in helping to manage employee absence, as many GPs are not trained in occupational health and may suggest adjustments that are not viable in most businesses. It will then be up to employers to demonstrate why the recommendations are not reasonable.
The option to reallocate holidays if sick
September 15, 2009
A recent ruling by the European Court of Justice (ECJ) has determined that if employees are sick whilst on scheduled annual leave, they may ‘re-allocate’ the days to another time, even if this means they cannot take the days in that holiday year and have to carry them forward to the next year.
This decision followed the highly publicised Stringer case earlier this year, which ruled that employees will continue to accrue their holidays when they are on long term sick leave, and that this could be carried forward if they are unable to take the leave in the current year.
This latest ruling covers situations when an employee is on holiday, and becomes sick. The ECJ has said that it is no longer allowed for an employer to say ‘tough luck, you lose those days’ if the employee is genuinely sick. And there lies the potential problem for a small number of employers; that this system is open to abuse from a handful of employees that may try to increase their holiday entitlement by claiming sickness during a period of annual leave. However it is recommended that the employee should provide clear medical evidence of the illness – i.e. a doctor’s note – to show that they would have been off work if they weren’t on holiday. In theory this could prove to be overruled as well in cases where the illness lasted less than 7 days, because employees can self-certify for this amount of time in normal sickness absences, however for now it is generally accepted that this is required to be able to reallocate holidays.
Short term sick note measures to help control swine flu
July 9, 2009
Daily news reports have been keeping us updated on the dramatic spread of swine flu over the last few months. Each day thousands more people are being diagnosed, and increasing fatalities are also occurring where people with existing medical problems are contracting the virus. Because of the threat of the virus and its highly contagious nature, the government is considering ways to attempt to control the spread of swine flu.
One possibility that has been suggested by the Department of Health is to temporarily increase the number of weeks an employee can self-certify for sickness absence from one week to two, meaning they would not need to get a medical certificate (doctor’s note) from their GP until they had been off work for a fortnight. This measure would only be put in place for a period of six months, and the change would probably be introduced without any consultation period due to the emergency nature of the situation. The aim of the measure is to reduce the amount of time spent in GP surgeries, both from a resourcing point of view and to reduce the spread of the virus by concentrating a high number of people carrying it in one place whilst trying to get certification.
Of course, there are claims that this type of measure could encourage staff members to abuse the new rules and take more time off sick as they would not need to be certified, however organisations’ existing sickness absence management processes should be used to combat this issue in the same way they do for the current self-certification period. It has been well documented about the possible damages to business a full scale outbreak of swine flu could cause, and so any measure to reduce this risk is probably a positive step. Even so, organisations should be mindful of the risks swine flu could cause to their business and put in steps to react should an outbreak leave them with a reduced workforce, such as facilities for home working.
M&S ‘whistleblower’ claims human rights
May 14, 2009
Not long ago I wrote about Margaret Haywood, the NHS worker who was struck off after filming a secret documentary for the BBC which highlighted the poor treatment of elderly patients at a Brighton Hospital (NHS case highlights whistleblowing legislation, 20th April). This was an interesting case because Haywood was described as a Whistleblower, but hadn’t actually been through a formal process to complain about any wrongdoing, which is required under whistleblowing legislation.
This week sees a similar case go to tribunal in London, following the sacking last year of Tony Goode, Customer Loyalty Manager at M&S, for leaking information to the media about planned cuts in redundancy payments. The retail giant viewed this as gross misconduct and dismissed him. Goode made an appeal, supported by his union the GMB, but was unsuccessful, however he did not stop there and has taken the case to the Central London Tribunal, with continued backing from the union.
Goode is also being labelled a ‘whistleblower’ in the media, but, as with the Haywood case, his actions do not actually fall under whistleblowing legislation, as indicated by an M&S spokesperson:
“Tony Goode deliberately leaked internal company information and made derogatory and speculative comments to the media. He did this despite there being a variety of other internal routes available to address his concerns, and very clear guidance on the handling of internal information.”
Goode is claiming that his dismissal was unfair because it breached his human rights. This will mean his freedom of expression, as described in the law:
“Everyone has the right of freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without inference by public authority and regardless of frontiers.”
However, the Human Rights Act also says that this right can be subject to:
“formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.”
So I think that Goode will struggle to rely on this piece of legislation to defend what he did and claim unfair dismissal. I will be really surprised if he wins his case, because no matter how disgruntled he, or any other employee was, about the proposed changes to the redundancy pay, this was an internal process and the first thing Goode should have done is raise a grievance about it, or, better still, organised a collective grievance, rather than go straight to the media. I will continue to watch the developments with interest!
NHS case highlights whistleblowing legislation
April 20, 2009
In the news last week was a story about Margaret Haywood, a former NHS worker who was struck off after secretly filming a BBC Panorama programme about the treatment of elderly patients. The programme was filmed in 2005 at the Royal Sussex Hospital in Brighton, and highlighted some horrific practices in the treatment of elderly people.
Haywood was found guilty of misconduct and was struck off, as the disciplinary panel felt that she had failed to carry out her duties as a nurse, because she prioritised her work for the filmmakers over her nursing obligations. It was also found that Haywood compromised patient confidentiality because she filmed them without their knowledge or consent. Although Haywood admitted this, she denied prioritising her filming duties over her nursing duties, and said that she had no option but to make the film, because neither her line manager or her ward manager had listened to her concerns about poor patient care. Haywood said that she knew the risk she was taking but thought it was worthwhile and necessary.
The Conservative party have highlighted that there is a ‘closed culture’ within the NHS which makes it hard for staff to speak out about organisational failings or poor practice, and there are calls for a review of the Public Interest Disclosure Act (PIDA) which protects whistle blowers in the workplace. However the Department of Health have said that this legislation is sufficient for the job, and have highlighted:
“The new NHS Constitution includes an explicit right for staff who report wrong doing to be protected and we have set up a special helpline for whistle-blowers which treats calls in confidence.”
Although Haywood’s cause is a worthy one, and it would be unfair if she has lost her employment because she decided t speak up and highlight the awful standard of care in the hospital, I’m not sure what she did is actually covered under whistle blowing legislation. To be protected, whistle blowers need to follow certain procedures in order to make their complaint, and are normally required to complain to a particular body regarding a wrong doing (for example, if they were outlining fraudulent activities, they would probably go to the police) – so exposing the problem on a national television programme is probably not covered. Even though Haywood had spoken to managers on her ward about the treatment of elderly patients, she could have exhausted a few other avenues – e.g. a written complaint to someone higher – before going to Panorama, which is basically what the disciplinary panel said.
The Public Interest Disclosure Act is a complicated piece of legislation and it is a good idea for companies to have a specific whistleblowing policy outlining who is protected, and the procedure to follow when making a disclosure or complaint in order to receive the protection.
The new ACAS code of practice: handling grievance procedures (3)
April 15, 2009
This is the third article in a series looking at how to deal with grievances under the new ACAS code of practice, which came into effect on 6th April. This article looks at the final part of the process, the outcome of the grievance and the appeal.
The outcome/decision of the grievance should be communicated in writing to the employee, with reasoning if it is not upheld, and details of action the employer intends to take if it is upheld. This should be given ‘without unreasonable delay’. In the letter, the employee needs to be informed of their right to appeal the outcome if they do not agree with it. The letter should explain who the employee should appeal to, and this should be a different (and often more senior) manager from the one that heard the original grievance.
The policy should explain what should be put in the appeal; i.e. the grounds for the appeal with explanation of why they do not feel the outcome was correct. The code of practice says that the appeal should be submitted ‘without unreasonable delay’ and I think this is definitely a point about which there should be a specified timescale within the policy. Remember though, that if the employee does not appeal within the timescale, consideration should be made as to whether the appeal should be heard anyway, because the new system does not require absolute compliance to procedures if there is reasonable justification for not meeting them – this might include reasons such as if the employee was ill and therefore couldn’t appeal within the timescales.
The appeal meeting should be held without delay or according to the policy timescales, and further investigations may be needed. The employee has the right to be accompanied at the appeal meeting. The outcome of the appeal will be final and should be set out in writing to the employee in the same way as the grievance outcome letter.
As you will see, not a lot has changed with the way organisations should handle grievances, however it is advisable for organisations to download the new code of practice and check their grievance policy against it so that they don’t fall foul of any requirements.
To go to the ACAS website click here.
The new ACAS code of practice: handling grievance procedures (2)
April 13, 2009
The last article on HR Girl (The new ACAS code of practice: handling grievance procedures (1) - 11th April) introduced the grievance procedure as part of a series of articles looking at the new ACAS code of practice, and explained how a grievance should and can be submitted. This article covers the grievance meeting itself.
Once a grievance letter has been submitted, a meeting should be held with the employee ‘without unreasonable delay’. As with the disciplinary procedures, it may be useful to keep any specified timescales in the policy for how soon a grievance should be responded to. Organisations are no longer bound as strongly to the grievance procedure as they were under the previous legislation, as the code of practice is not statutory. So if you always aim to meet the timescales in the process, but put the reason and justification to the employee in writing if you cannot meet them, this should be fine.
At the meeting, the employee should be given the opportunity to explain why they have submitted a grievance, and give all their opinions and evidence. A good way to approach a grievance meeting is to highlight each point raised in the letter, ask the employee to explain this point fully, ask probing questions on each point, and then ask if there are any further points at the end. An investigation into some of the points will often be required before the outcome of the grievance process can be made, so the grievance should be adjourned in order to do this. Explain to the employee what is going to happen and give a timescale for when the decision, or a further meeting, will take place.
The same rules regarding the employee being accompanied at the meeting apply to the grievance procedure as the disciplinary procedure, and this right should be explained in the policy. It is important to note that this right relates to ‘reasonable’ requests for accompaniment. For example, it may be unreasonable to request to be accompanied by a colleague who is based hundreds of miles away, or a Trade Union official who is about to go on holiday for three weeks. On the other hand there may be reasonable justification for the companion having to be this person, so the request should be given due consideration.
The next article will look at the outcome of the grievance and the appeal.
The new ACAS code of practice: handling grievance procedures (1)
April 11, 2009
All this week, the articles posted on HR girl have looked at the new ACAS code of practice for dealing with disciplinary and grievance issues in the workplace, and have explained the way disciplinary and dismissal procedures should be carried out. The new ACAS code of practice came into force on 6th April, and replaced the Statutory Dispute Resolution Regulations that were introduced in October 2004. This and the next two articles will look at the way grievance procedures should be carried out under the new code of practice, and what should be in the company policy. This article looks at how the employee should submit a grievance, and what constitutes a grievance.
It is always preferable for a grievance to be resolved informally, and this should be clearly stated in the company policy. Employees should be encouraged to approach their line manager or another manager if this is not possible, with any issues they have. To encourage this to happen, line managers need to be approachable and need to be proactive in resolving issues so that employees know that if they have a problem, the best way to sort it out will be the informal route.
If the grievance cannot be resolved informally, then the employee should write to their line manager, or another manager if the grievance is about the line manager, and should set out the nature of the grievance. One note here for HR practitioners is to remember that any written complaint should be treated initially as a grievance, as many organisations have been caught out by the tribunals for not responding to a written complaint using the grievance procedure (see ‘Responding to a Grievance’, 8th June 08). If you think a letter that contains a complaint (e.g. a resignation letter) probably isn’t a grievance but could be construed as one, then don’t take any chances. The best thing to do is to write back to the employee stating that you are treating the complaint as a grievance, and invite them to a meeting, but ask them to inform you in writing if they did not intend the complaint to be a grievance.
The next article looks at the grievance meeting itself.
The new ACAS Code of Practice: handling disciplinary procedures (3).
April 9, 2009
This continues from yesterday’s article (The new ACAS Code of Practice: handling disciplinary procedures (2)) and is part of a series examining the impact of the new ACAS Code of Practice for dealing with Disciplinary and Grievance procedures. This article looks at warnings, appeals and non-attendance at hearings.
As with the old system that was in place before Monday 6th April, after the disciplinary meeting the disciplining manager should decide on what, if any, action should be taken. This will normally be in the form of a warning; and the employee should be informed in writing of this. The code is quite specific on what should go into a warning letter, and this should be set out in the company policy to ensure it is always complied with. The warning letter should state:
- The nature of the misconduct or poor performance
- What change is required, with a timescale (e.g. reduce number of lates by X, to be reviewed in three months)
- How long the warning will last – and be taken into consideration
- What the consequences will be if the improvement is not made
If the company does not comply with the above – it won’t automatically be unfair, but it would be quite hard to prove that it was reasonable to omit part of the warning as stated above. The warning should be appropriate to the severity of the misconduct or performance issue; as was the case with the old structure; and the policy should state a list of acts which would be seen as gross misconduct and therefore lead to dismissal without notice (make sure the policy states ‘this list is not exhaustive’!).
If an employee does not turn up to a disciplinary meeting, the code is less specific than the previous legislation on what should happen:
‘where an employee is persistently unable or unwilling to attend a disciplinary meeting without good cause the employer should make a decision on the evidence available’
The word ‘persistent’ is not clarified. Previously the general rule was ‘two strikes then out’ (i.e. give them two opportunities to turn up) – and it would probably be advisable to continue with this until case law develops from the new system.
The employee must be provided with the opportunity to appeal the decision. Again, I think it is good to have timescales for when the appeal should be heard in the policy. A different and impartial manager should hear the appeal, and the employee has the right to be accompanied at the meeting. The outcome should be set out in writing to the employee as soon as possible.
The last three articles have provided an overview of the system we should use to handle disciplinary issues going forward. I don’t think there is too much to worry about for most organisations; the main changes are to do with how the tribunals deal with cases for unfair dismissal and the compensation they award, however it is critical that companies review their procedures and familiarise themselves with the Code of Practice. The next few posts will look at how the grievance procedures are affected by the new code.