The new ACAS Code of Practice: handling disciplinary procedures (2).
April 8, 2009
This article is part of series looking at the new ACAS Code of Practice on handling discipline and grievance processes in the workplace, which came into effect on Monday this week. Yesterday’s article (The new ACAS Code of Practice: handling disciplinary procedures (1)) looked at the investigation and how to inform the employee of a disciplinary issue. This article looks at the disciplinary hearing itself.
The code says that the meeting should be held:
‘without reasonable delay whilst allowing the employee reasonable time to prepare their case’.
You will probably start to see by now that a lot of the new system is based on what is reasonable rather than what is set in stone. This gives companies more discretion in each case to do what they feel is the right thing, but also could lead to difficulties because there are different perceptions of what is reasonable. In saying this I would think that the ‘band of reasonableness’ will still apply – this is a range of responses or actions that a reasonable employer would fall within. In terms of the timing of the meeting, I think that it would still be a good idea to have set timescales in a policy, i.e. ‘the employee will be given X days notice of the meeting’. This is because another test of reasonableness is how consistently an employer applies the code with different employees; and a specified timescale will make this easier. Because a failure to follow the procedure will no longer mean an automatically unfair dismissal, it will be possible to work outside of the timescales set in the policy as long as there is reasonable justification for this (e.g. a further piece of evidence becomes apparent which means the meeting has to be delayed) and as long as this is documented so that a tribunal could see the reasonable justification.
The code says that the employee should:
‘be given a reasonable opportunity to ask questions, present evidence and call relevant witnesses’
The last part of this might be quite different from what most companies have had before, and I certainly have never been in a disciplinary hearing where the employee being disciplined has brought in their own witnesses or cross-examined the employer’s witnesses. I can’t see many companies wanting to go down this route, as I can see it being very difficult to handle; especially in cases of high tension and emotion. The word ‘reasonable’ is important again here – this means the employee can only call witnesses if this request is within reason – so if the company feels that to grant this request would cause difficulties, such as extreme anxiety for the witness, the request can be refused. The witness can also refuse to attend the meeting. I personally feel that the current system of gaining evidence from witnesses at separate occasions will be the most popular way to deal with witnesses going forward. Having said that, there may be an occasion where you feel it would sort the problem out quickly and effectively by getting the employee and witnesses in a room together to discuss the problem; so perhaps this point is valid in some cases.
The next post will look at how to deal with the outcome of the hearing.
The new ACAS Code of Practice: handling disciplinary procedures (1).
April 7, 2009
Yesterday saw the introduction of a new system for handling disciplinary and grievance procedures in the workplace; with the introduction of the new ACAS Code of Practice, which replaced the existing Statutory Dispute Resolution Regulations. The next few articles look at the way the new code impacts on the polices, procedures and handling of disciplinary issues within organisations.
Many of the processes required under the new code are quite similar to the requirements of the old statutory procedures – so your existing policy or handbook may be a long way to achieving compliance with the new code if it is compliant with the old one. It is still important however, to have a look at the code (see ACAS website) and check your policy against it. Some important things to remember are:
A thorough investigation needs to be carried out; which might mean an investigatory meeting with the employee, or other actions such as the collecting of witness statements, documents or emails. If possible, a different manager should carry out an investigation to the one that will carry out the disciplinary meeting. The employee does not have the right to be accompanied at an investigatory meeting, unless your policy says they do - and I think a company policy should state this either way to ensure clarity.
It may be necessary to suspend the employee whilst an investigation goes on – this would normally only be in the event of a serious case of misconduct that would potentially result in dismissal. The company needs to have clear justification for suspension and it should always be on full pay because suspension on no pay could indicate an assumption of guilt before the disciplinary even takes place.
If you decide to go to a disciplinary hearing, the employee should be informed in writing of the problem, and the letter should contain information about the alleged misconduct or poor performance, including any evidence collected. It is important that the employee should be made aware of the potential consequences of the outcome (this was highlighted in a recent case: see Invite to disciplinary – make the outcome clear March 5th 09), and also of their right to be accompanied by a work colleague or trade union representative.
The new ACAS Code of Practice - introduction
April 6, 2009
Anyone involved in HR or employment will know that as of today a new regime for the management of workplace disputes will be implemented in UK legislation. The Statutory Dispute Resolution Regulations which were introduced in October 2004 have been repealed and replaced with a new ACAS Code of Practice on Disciplinary and Grievance Procedures. The old procedures were introduced to try to reduce the amount of claims being made to employment tribunals; an aim which has spectacularly failed, with last year seeing an increase of more than 40% in claims on the year before. This week’s posts will look at all the different aspects of the new code of practice, how it differs from the old system of handling discipline and grievance, and what your company procedures should contain going forward.
Compliance
One of the main reasons that claims rocketed under the old system is the strict compliance to statutory and company procedures that was obligatory; the focus on procedural compliance has led to claims for unfair dismissal being won and lost on a procedural technicality, regardless of whether the dismissal was reasonable or fair; and this point is a key factor of the new system being implemented today. The new ACAS Code of Practice is not a legally binding document; it is not statutory and therefore does not hold the same legislative weight in a tribunal as the Statutory Dispute Resolution Regulations, so a failure to follow the code in handling a dismissal does not automatically mean the dismissal was unfair. However in saying this, tribunals will take the code into account when looking at how a dismissal or dispute was handled in the workplace; so organisations will have to be sure they follow the guidelines in the code, or have a strong justification for not following a particular aspect of it.
Compensation
Another change in the system relates to the relevant uplift or reduction in compensation awarded for failure to follow the recommended procedures. Under the old system, if a company or employee failed to follow the statutory procedures, the tribunal is obliged to uplift or reduce the compensatory award by between 10% and 50%. There is no discretion in this – the tribunal has to make the uplift or reduction for a procedural failure. In the new scheme, the tribunal can uplift or reduce the compensation if it feels there has been an unreasonable failure to follow the code of practice – but by no more than 25%. This part of the tribunal’s role is now discretionary; and means that even if a company fails to follow part of the code, the tribunal may feel that this wasn’t an unreasonable failure and may therefore not award any increase in compensation. This is most certainly one of the areas of the new system that will be tested and defined by case law
The next few articles will focus on disciplinary procedures under the new code of practice.
Opt out of Working Time Directive survives again
April 3, 2009
There has been so much debate in recent months about the UK’s continuing fight against EU pressure to scrap the ability for UK workers to opt out of the 48 hours maximum working week. The Working Time Directive is a piece of legislation designed to ensure people do not work too much as this could affect their health and safety, and also covers the amount of holidays workers are entitled to. The UK, and 14 other EU countries have kept an opt-out option for their workers, which means that companies can have flexibility within their workforce to respond to different organisational needs, and for workers to have more choice if they wish to work longer and earn more.
In February I wrote about the argument being put forward by MPs and Union leaders which is that the opt-out is continuing to encourage the long hours culture that we have such a problem with in the UK. However the overriding feeling appears to be that the country should fight to keep the opt-out, and this is what Ministers have been doing in the European Parliament in Brussels this week.
On this occasion, the UK has managed to resist the pressure to drop the opt-out because negotiations between the council of ministers and MEPs failed to provide an agreement, with the main sticking point that neither side would budge on being staff on-call time (i.e. whether the time people spend on-call, e.g. over a weekend, should count towards the maximum number of hours worked in a week). Because no compromise could be reached, it looks like the opt-out will remain for the time being at least. Employment Relations Minister Pat McFadden said:
“We have said consistently that we would not give up the opt-out and we have delivered on that pledge,”
This decision will be welcomed by a lot of businesses that use the opt-out to manage different periods of business, and employees that rely on the income their overtime above the 48 hour limit provides. However Unions and a number of MPs that believe scrapping the opt out will help the county move away from a damaging long hours culture will be disappointed in the outcome of this weeks events in Europe.
Retracted resignations – who is the April fool?
April 1, 2009
What did you get in the post today? Amongst all the usual rubbish such as promotional pens and mugs from desperate recruitment agencies, invitations to attend astronomically priced training and other general bits of junk mail, did you receive any letters of resignation? Thankfully I didn’t, but one of our employees just said to me that he was considering handing his notice in as an April fools prank, but decided against it because he wasn’t sure if we would accept it and not let him retract it - which made me chuckle quite a lot (as it was just a joke)! But the April fools joke and its potential to backfire made me think about how organisations should deal with a situation where an employee resigns and subsequently wishes to retract the resignation. Where do employees and employers stand on this issue?
There was an interesting case at the Employment Appeal Tribunal recently on this subject. In Ali vs Birmingham City Council, Mr Ali had resigned due to personal circumstances. The employer actually gave Ali a ‘cooling off period’ of 30 minutes to reconsider, but after consideration he decided he definitely wanted to resign and the company accepted this. Four days later Ali asked for the resignation to be retracted, but the company said that it was too late and the resignation stood. In the tribunal, Ali argued that he had been under pressure and couldn’t think clearly at the time of his resignation, but the EAT upheld the tribunal’s decision that he had been given enough time to consider the resignation and therefore had not resigned in the ‘heat of the moment’. Also his resignation had been ‘unambiguous’, i.e. he had made his intentions very clear, and therefore the employer was entitled to accept this as a proper resignation.
There are some special circumstances in which an employer cannot rely completely on words of resignation – even if they are unambiguously given. These have been set by the Court of Appeal and are when the employee is immature, when he/she has been pushed into the resignation by the company, or when it is considered that the resignation was in the heat of the moment. When the third of these circumstances is apparent, the employer should give a cooling off period, which should be around one or two days; so even if the EAT had found that Ali resigned in the heat of the moment his return date of four days later would have been too late.
So in conclusion, if our employee had resigned as an April fools prank, and then owned up to the joke straight away, the company wouldn’t have been able to take the initial resignation as final, although it might have been prudent to turn the joke around on that individual so that they thought for a short while that we could do! All in all I think it’s probably a good thing that the idea of playing such a prank was itself only a silly joke to amuse ourselves with!
Dismissal of Senior Executives (2)
March 26, 2009
In my last article (dismissal of senior executives) I discussed the issue of major organisational failings, and whether the most senior executive in the organisation can be held accountable – and dismissed – for those failings, as was the case with Sharon Shoesmith of Haringey Council after the Baby P case, but was not the case for Sir Fred Goodwin of the RBS, who retired on a six figure pension after the bank’s demise. Shoesmith is now taking the Council to tribunal for unfair dismissal and sex discrimination – so where do organisations stand on the dismissals of senior staff in these situations?
The statutory rules on dismissals relate to following a fair process. Although the statutory dispute resolution procedures will not apply in a few weeks, the ACAS code of conduct that replaces the procedures will still require companies to behave in a fair and justifiable way in dismissing an employee.
As usual, the paperwork is important in showing fairness in a process and a decision to dismiss. If it says in an executive’s contract that they have overall responsibility for a function or organisation, and it is clear that the overall success of that unit will be used to measure the individual’s performance, then it may be possible to show negligence on the part of the person involved. Other documents that might also support this could be job descriptions and appraisal or other performance management paperwork.
What about when an executive cannot be held directly responsible for a failing (as is often the case) but it is felt that something needs to be done in order to repair some of the damage to the reputation of the employer? This is possibly the case in the Haringey Council example, and it is often in the news that very senior staff have resigned from their position after a major disaster has occurred; but Shoesmith did not do this. The company would have to make a convincing and justifiable case that it needed to separate itself publicly from the executive in question in order to protect its reputation. Evidence, as usual, is really important.
In any case involving a publicly viewed failure in an organisation where the dismissal of a very senior employee is possible, it is always advisable to seek legal advice before taking any action.
Dismissal of senior executives
March 23, 2009
There has been a lot of publicity recently about Senior Directors’ roles in the failings of organisations, and whether they should take responsibility personally for what has taken place.
There was outrage across the country a few weeks ago when it became apparent that Sir Fred Goodwin, RBS Chief Executive had retired on a six figure salary when his bank had come close to collapse and it was felt it had contributed to the current economic circumstances which is leaving millions of people jobless and even homeless. People could not believe that somebody that had overall responsibility for the bank and its success or failure could not only ‘get away with’ the massive failings but was essentially rewarded for it by being able to leave quietly on a small fortune. This has led to calls for new measures so that the FSA can stop these kinds of huge ‘rewards for failure’ in the future.
On the other hand is the case of Sharon Shoesmith, the former head of Children’s Services at Haringey Council was sacked without notice for the failures of the council to protect Baby P from repeated horrific abuse – after a damning report on the council’s failings was released. This is possibly the kind of action the people who were so outraged at the RBS outcome would expect a senior executive to face after such a catastrophic disaster. However Shoesmith made a claim to the Employment Tribunal for unfair dismissal, and has recently added sex discrimination to her claim – a total that could amount to over £1million in compensation if she is successful. This will be a fascinating case to watch, because of the huge publicity surrounding the case of baby P but also because of the implications of how the dismissal was handled at such a high level?
So what’s the answer? Should organisations be able to find those in ultimate charge guilty of gross negligence or misconduct after a failure as critical as those of RBS or Haringey Council? More on this in the next article!
First time parents - do they know their rights?
March 17, 2009
One of my friends is expecting a baby in about six weeks, and whilst I’m trying to think of the nicest present to get for their alternative baby shower (just basically a big knees up), probably the best gift I can give my friend at the moment is advice on her employment rights as she is becoming a parent for the first time.
What has struck me is the fact that my friend is not completely aware of her rights, and this is probably the case for employees in many companies. My friend is a teacher and she told me that she wants to go back to work part time after her maternity leave but that the college has indicated that they will not let her because she’s in a management level role – but they will probably invite her to come back into a lower grade position if she wants to work part time. My friend had almost taken this as the final word on the subject until I informed her of the right to request flexible working regulations – and the process that needs to be followed to have a constructive two-way conversation regarding the different options and their implications. I explained that as a parent of a child under six years of age (soon to be extended to 16 years) she had the right to request flexible working by writing to the employer – and the employer has an obligation to consider the request and either grant it, negotiate another option if it reasonably believes the option she puts forward is unfeasible, or refuse the request if there is a genuine reason that means it cannot be granted (reasons might include higher costs or it having a detrimental effect on other staff, customers/clients or service quality). I asked my friend if she thought it is reasonably possible for her to work part time and still achieve the needs of her job – and she said it is, so I advised her to put the reasons she believes this is possible in her request – then the onus is on the employer to argue the opposite.
Another thing my friend said is that her employer has asked her to give back her company laptop during her maternity leave; and again I have advised that this is not really correct under the recent changes to maternity legislation. In October last year an amendment was made to the law which means that women are now entitled to their full contractual benefits during ordinary and additional maternity leave – and these benefits are likely to include a company laptop, especially if, as in my friend’s case, the employee uses the laptop for personal use at home as well as for work.
It’s easy to see why companies might not inform employees of their full rights under maternity, paternity and adoption law, if they feel that the provisions they will have to make will have a detrimental effect on the company. However legally, and ethically, I feel that it is important to make sure employees know where they stand and what options they have as parents. This could be in the form of a booklet or a section on the company intranet – as although the information may be found in the employee handbook, if there is just one dusty copy up on a shelf somewhere, employees becoming parents for the first time, or even those who are becoming a parent again but for the first time since legislation has moved on, may not have seen the relevant sections.
Would additional paternity leave be such a burden for companies?
March 16, 2009
This time last year I wrote about proposals to revolutionise parental leave rights so that fathers would be entitled to take up to 6 months paid additional paternity leave (APL) instead of the mother taking additional maternity leave (Maternity Leave for Men! 25th March 08). I think this legislation is a really important step in family-friendly rights as well as helping to create more equality for women; through the destruction of the myth that employing women will cause later employment problems when they get pregnant and take loads of time off (see Alan Sugar’s famous comments from last year).
Lord Mandelson’s call to postpone any new legislative changes to avoid any further financial burden on companies in the recession means that although this change was due to be introduced by the end of the current parliament, it looks like it might not happen at all or for a long time if Lord Mandelson’s recommendation is adopted.
I’ve just been reading an article in which the pros and cons of introducing the change are examined, and I may be being naive, but some of the comments about why it would be difficult to manage the new laws in organisations seem a little unreasonable if not completely unfounded.
The first difficulty raised in the article is the need to gain confirmation from the mother’s employer that she is returning to work at the end of ordinary maternity leave so that the father can take over the allocated additional leave, and perhaps this would add another level of administration; but would it be that much more that it justifies not having the provision at all? Surely it’s a matter of a few template letters and forms that are sent out by a certain date, and if the other employer does not confirm within a scheduled timescale (an appropriate amount of time to enable the employer to arrange cover for the father), then the father simply cannot take the leave?
Another argument is that it is likely that people taking paternity leave will take a shorter period that women generally take for maternity leave, which will be harder to find cover for. How is this any different to when people suddenly go off sick for a couple of months; which comes with no warning? Companies manage to cope with this; normally with temporary secondments and other short term cover arrangements, which can actually be really good for the development of other staff if handled well. Again, whilst this may be tricky, I don’t think it’s beyond the realms of possibility that even small companies cannot be creative enough to cope.
I think the most strange comment in the article I was reading was from a (male) HR consultant who said:
“No one is suggesting people don’t take paternity leave, but APL just adds to the weight of the problem. A specialist role could mean knowledge of the company is really important, so just having one person missing can be absolutely critical, and very often complete projects grind to a halt.”
Hmm… doesn’t that apply equally to having one woman missing when she takes maternity leave? The comment above implied that it is only men that hold ‘specialist’ or ‘critical’ positions, and therefore companies that manage to find cover for women would not be able to do so for men. This simply confirms to me the reason we need to be giving men the same parental leave opportunities that women have; so that women can prove they can and have been managing the same career opportunities as men. The more fathers that take additional leave, giving their partners the chance to return to their career; the more women will break the glass ceiling and move into more senior roles, which will lead to even more fathers taking APL because their partners will be the higher earners. And that’s really what this legislation is all about; giving families flexibility to manage their work patterns in the most financially beneficial way, although it stretches way beyond that into equal opportunities and diversity in the workplace as well.
I’m open to alternative arguments on this subject; if you think that changing the law to allow APL will be a nightmare for organisations, get in touch with your views.
Decision reached by ECJ in Heyday/mandatory retirement case
March 6, 2009
Last month I wrote about the case of Heyday and the mandatory retirement age (9th Feb), which is a dispute that has been ongoing for a long time. Heyday, which is part of age charity Age Concern, brought a case to the High Court arguing that the mandatory retirement age of 65 in the UK, and the fact that employers can lawfully dismiss an employee for this reason, is against the Age Discrimination Regulations; which is derived from the EU Equal Treatment Directive. The High Court referred this question to the European Court of Justice (ECJ), which has now delivered its decision.
The decision supports that of the Advocate-General’s decision in November last year (which is usually the case in ECJ rulings), stating that:
“the age limit was legal if it was directed towards fulfilling a legitimate aim in employment or social policy”
This means that, for the time being at least, the mandatory retirement age of 65 will remain, and employers can continue to use retirement as a lawful reason for dismissal as long as they follow the statutory retirement procedures in doing so.
The decision has been unpopular with a number of organisations, including the CIPD which feels that the UK is acting unfairly and also losing out on a lot of potential talent by automatically assuming people should not work after 65.
This is a really big decision in current employment law terms; as it still means that the Age Discrimination Regulations, which were introduced in 2006, are slightly contradictory in their application. Of course, the decision to keep the mandatory retirement age will make things easier for employers needing to cut down on the workforce in difficult financial circumstances, and I wonder if a different decision might have been reached if the economic climate had been different at the time of the ECJ ruling? What do you think?