OTHER CHAPTERS
I. SETTING UP AN ORGANISATION
Ch.1: Trusts & unincorporated associations
Ch.2: Companies & other incorporated structures
Ch.3: Charitable status, charity law & regulation
Ch.4: The objects clause
Ch.5: The governing document
Ch.6: Setting up an organisation
Ch.7: Registering as a charity
Ch.8: The organisation's name
Ch.9: Branches, subsidiaries, partnerships & mergers
II. GOVERNANCE & MEMBERSHIP
Ch.10: Members of the organisation
Ch.11: Members of the governing body
Ch.12: Officers, committees & sub-committees
Ch.13: Duties & powers of the governing body
Ch.14: Restrictions on expenses, remuneration & benefits
III. RUNNING AN ORGANISATION
Ch.15: The registered office and other premises
Ch.16: Paperwork requirements
Ch.17: Meetings & decision making
Ch.18: Legal agreements
Ch.19: Organisational & personal liability
Ch.20: Insurance
Ch.21: Financial difficulties & winding up
IV. EMPLOYEES, WORKERS, VOLUNTEERS & OTHER STAFF
Ch.22: Employees and other workers
Ch.23: Rights, duties & the contract of employment
Ch.24: Model contract of employment
Ch.25: Equal opportunities in employment
Ch.26: Taking on new employees
Ch.27: Pay & pensions
Ch.28: Working time & leave
Ch.30: Termination of employment
Ch.31: Redundancy
Ch.32: Employer-employee relations
Ch.33: Employment claims & settlement
Ch.34: Self-employed workers & other contractors
Ch.35: Volunteers
V. SERVICES & ACTIVITIES
Ch.36: Health & safety
Ch.37: Equal opportunities in provision of goods & services
Ch.38: Confidentiality, privacy, data protection & freedom of information
Ch.39: Intellectual property
Ch.40: Publications & publicity
Ch.41: Campaigning & political activities
Ch.42: Public gatherings & entertainment
Ch.43: Food & drink
VI. FUNDING & FUNDRAISING
Ch.44: Funding & fundraising: General rules
Ch.45: Fundraising activities
Ch.46: Tax-effective giving
Ch.47: Trading companies
Ch.48: Contracts & service agreements
VII. FINANCE
Ch.49: Financial procedures & records
Ch.50: Annual accounts, reports & returns
Ch.51: Auditors
Ch.52: Corporation tax, income tax & capital gains tax
Ch.53: Value added tax
Ch.54: Investment & reserves
Ch.55: Borrowing
VIII. PROPERTY
Ch.56: Land ownership & tenure
Ch.57: Acquiring & disposing of property
Ch.58: Business leases
Ch.59: Property management & the environment
IX. BACKGROUND TO THE LAW
Ch.60: How the law works
Ch.61: Dispute resolution & litigation
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UPDATED INFORMATION FOR CHAPTER 29:
VOLUNTARY SECTOR LEGAL HANDBOOK
This page contains information that has appeared on Sandy Adirondack's legal update website for voluntary organisations at www.sandy-a.co.uk/legal.htm. For current updates, including potential changes that are in the pipeline, see the legal update website.
These websites for each chapter update
the 2nd edition of The Voluntary Sector Legal Handbook by Sandy Adirondack and James Sinclair Taylor (Directory of Social Change, 2001). The websites are not intended as a comprehensive update and should not be treated as such.
To order a copy of The Voluntary Sector Legal Handbook, print out the order form at www.sandy-a.co.uk/bookserv.htm or send an email order by clicking
. It costs £50 for voluntary organisations or £80 for others, plus 10% p&p. We expect the third edition to be published in 2007.
The information here covers the law applicable to England and Wales. It may not apply in Northern Ireland and/or Scotland. These news items are not a full or definitive statement of the law and are not intended as a substitute for professional legal advice. No responsibility for loss occasioned as a result of any person acting or refraining from acting can be taken by the author.
Chapter 29
DISCIPLINARY MATTERS, GRIEVANCES AND WHISTLEBLOWING
REPLACING THE STATUTORY DISCIPLINARY, GRIEVANCE AND DISMISSAL PROCEDURES
Updated 21/7/07. This information updates chapters 29 and 30 in The Voluntary Sector Legal Handbook 2nd edition.
Just when you've finally really got your head around the statutory dismissal, disciplinary and grievance procedures (DDP) which came into force in October 2004, Gordon Brown announced on 11 July 2007 that the procedures will be repealed as part of his employment simplification bill. New procedures as recommended by the Gibbons review will be introduced, but it is not yet clear what these will be. The intention is to get more disputes resolved informally at an early stage.
In the meantime information and guidance about DDP, including sample letters, are on the Department for Business, Enterprise and Regulatory Reform (formerly DTI) website at www.berr.gov.uk/employment/Resolving_disputes/index.html.
The Employment Act 2002 (Dispute Resolution) Regulations 2004 are at www.opsi.gov.uk/si/si2004/20040752.htm.
ACAS guidance on producing disciplinary and grievance procedures that comply with the statutory requirements is at www.acas.org.uk/index.aspx?articleid=820.
The ACAS code of practice on disciplinary and grievance procedures is at www.acas.org.uk/media/pdf/9/5/CP01_1.pdf.
Its advisory handbook, updated in September 2006, is at www.acas.org.uk/index.aspx?articleid=890.
In addition to the ACAS resources, CIPD has a factsheet on discipline and grievances at work, updated in May 2007, at tinyurl.com/27u3sm.
DISCIPLINARY, GRIEVANCE AND DISMISSAL PROCEDURES
Updated 1/3/07. This information updates chapters 29 and 30 in The Voluntary Sector Legal Handbook 2nd edition.
Mandatory dismissal, disciplinary and grievance procedures (DDP) for employees (but not other categories of workers) came into force on 1 October 2004. The government said at the time the procedures would be reviewed after two years; the review was announced on 7 December 2006 and its recommendations are expected in spring 2007.
The procedures are complex, and an employer's or employee's failure to comply with them can have serious implications. Employers who have not already done so should review existing disciplinary and grievance procedures to ensure they comply with DDP, and in particular to ensure they allow employee representatives not only to accompany employees at disciplinary, grievance and dismissal meetings but also to speak on behalf of the employee.
Employers and employees involved in disciplinary matters, dismissals of almost any type (not just for disciplinary reasons) or grievances should get detailed information from the DTI and ACAS websites and if necessary take legal advice from ACAS or an employment solicitor before taking any action. Employees may also be able to get advice from a citizens' advice bureau or legal rights centre.
Information and guidance about DDP, including sample letters, are on the DTI website at www.dti.gov.uk/employment/Resolving_disputes/index.html.
The ACAS website at www.acas.org.uk/index.aspx?articleid=360&detailid=548 has further information, including a "disciplinary and grievance procedures folder" which contains flow-charts, the revised code of practice on disciplinary and grievance procedures, guidance on drawing up disciplinary and grievance procedures or adapting existing procedures to comply with the new law, and much other useful information.
The main changes include:
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The statutory dismissal and disciplinary procedures (DDPs) do not have to be used where a disciplinary case may result in a verbal or written warning or suspension on full pay, but do have to be used in other circumstances (for example where it may result in dismissal or in suspension on reduced or no pay).
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The statutory procedures have to be used for virtually all dismissals, including the ending of a fixed-term contract, redundancy and early retirement.
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A disciplinary procedure which has been agreed between the employer or an employers' association and one or more independent trade unions, and which gives employees an effective right of appeal against dismissal or disciplinary action, can be used instead of the statutory procedure.
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It is unfair for an employer to dismiss without meeting its obligations under the relevant dismissal and disciplinary procedure, but the employee must have a one year qualifying period before being able to claim unfair dismissal on this basis.
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Tribunals may increase compensatory awards by up to 50% where the employer has failed to use the minimum statutory disciplinary and dismissal procedure (so if the employer dismisses without going through the procedure and the employee takes the case to tribunal, the employee may be awarded up to 50% more than they would otherwise get).
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Statutory grievance procedures (GPs) are to be used for all grievances (and grievances are defined very widely—see below).
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Grievance is defined as "a complaint by an employee about action which his employer has taken or is contemplating taking in relation to the employee", but also includes grievances about other employees.
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Tribunals may decrease compensatory awards by up to 50% where the applicant has not used the minimum statutory grievance procedure (so, for example, an employee who brings a race, sex or disability claim and does not first go through the statutory grievance procedure could have their award significantly decreased).
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Certain types of complaint may not be presented to tribunal until the first step of the grievance procedure has been completed and 28 further days have elapsed.
The standard DDP and GP are three-step procedures involving a written statement, a meeting and an appeal mechanism. There is provision for a modified disciplinary procedure involving two written steps that can be used in some situations where the employee has been involved in actual (not alleged) gross misconduct, or where a dismissal is for reasons beyond the employer's control. A modified two-step grievance procedure can be used where the employment has terminated and both parties agree in writing to follow the modified procedure. The procedures do not apply where one party believes compliance would result in a significant threat to person or property, or where one party to the employment contract has been harassing the other.
Employees have a right to be represented by employee representatives at disciplinary and grievance meetings. The employee representative can speak on behalf of the employee but cannot answer questions directed at the employee.
The proposed provision for these statutory procedures to become an implied term of all contracts of employment (implied means they are part of the contract even if they are not written into it) is not included in the regulations but is likely to come into effect in future.
Rules relating to the written statement of employment particulars—which must be given within two months of starting work to all employees who will work or have worked more than one month—have been revised to require all employers, not just those with more than 20 employees, to provide details of the disciplinary and grievance procedures. These may be included in the statement of particulars or another document.
The Employment Act 2002 (Dispute Resolution) Regulations 2004 are at www.opsi.gov.uk/si/si2004/20040752.htm.
ACAS guidance on producing disciplinary and grievance procedures that comply with the statutory requirements is at www.acas.org.uk/index.aspx?articleid=820.
The ACAS code of practice on disciplinary and grievance procedures is at www.acas.org.uk/media/pdf/9/5/CP01_1.pdf.
Its advisory handbook, updated in September 2006, is at www.acas.org.uk/index.aspx?articleid=890.
In addition to the ACAS resources, CIPD has a factsheet on discipline and grievances at work, under "employment law" at www.cipd.co.uk.
Go back to contents
CLARIFICATION OF RIGHT TO BE ACCOMPANIED
Added 13/8/05. This information updates s.29.3.4 in The Voluntary Sector Legal Handbook 2nd edition.
In Skiggs v South West Trains the Employment Appeal Tribunal confirmed that the right to be accompanied at disciplinary and grievance hearings, as set out in the Employment Relations Act 1999, does not apply to investigative meetings which are intended only to explore facts about a disciplinary or grievance matter, and are not intended to result in a formal warning or some other action in relation to a worker. If an employer decides at an investigative meeting where the employee is not accompanied that a warning or some other penalty should be given, the employer should terminate that meeting and convene a separate disciplinary meeting.
Although the EAT decision was given on 7 March 2005, it relates to a case before the statutory dismissal and disciplinary procedures (see above) came into effect. Now that the statutory procedures are in place, it is now even more important that the employer ensures that investigative meetings are purely fact-finding and do not lead directly to dismissal or suspension on reduced or no pay. If such actions are contemplated, the investigative meeting should be terminated and the statutory procedure--notice in writing, meeting with right to be accompanied, and appeal--should be implemented.
EXPIRED WARNINGS AND DISMISSAL
Updated 1/3/07. This information updates ss.29.4.8 and 30.8 in The Voluntary Sector Legal Handbook 2nd edition.
The employment appeal tribunal stated in a decision on 14 February 2007 that expired disciplinary warnings can never be taken into account when deciding whether to dismiss an employee. In Airbus UK v Webb, Webb was summarily dismissed for gross misconduct three weeks after a disciplinary warning for a similar offence had expired. Four colleagues involved in the same offence were given final written warnings, rather than being dismissed, because they had no previous disciplinary record.
Webb claimed unfair dismissal on the basis of inconsistent treatment, and won his case in the employment tribunal. The employer appealed on the basis that the different treatment was justified because of Webb's disciplinary record, even though the warning had expired. The EAT found that "a tribunal is obliged, and not merely entitled, to ignore expired warnings".
The decision is similar to one by the Scottish Court of Session in February 2006, which held that it was not reasonable for a warning that had expired to be taken into account when dismissing an employee.
These decisions might tempt employers to give open-ended warnings for everything, but this would be a breach of the ACAS code of practice on disciplinary and grievance procedures (see www.acas.org.uk/media/pdf/9/5/CP01_1.pdf). Open-ended warnings should be used only for very serious offences.
Airbus UK Ltd v M G Webb is at www.bailii.org/uk/cases/UKEAT/2007/0453_06_1402.html.
Diosynth Limited v Morris Thomson is at www.bailii.org/scot/cases/ScotCS/2006/CSIH_5.html.
WHAT IS A STATUTORY GRIEVANCE LETTER?
Updated 21/7/07. This information updates s.29.5 in The Voluntary Sector Legal Handbook 2nd edition.
IMPORTANT. Employers may need to treat any written complaint or any resignation letter that sets out a complaint as a step 1 statutory grievance letter. As such it must trigger the statutory grievance procedure (see above).
Decisions since 2005 have clarified that a letter from an employee can be a statutory grievance letter even if it does not say it is about a grievance.
In Thorpe & Soleil Investments v Poat & Lake, the employment appeal tribunal said on 18 October 2005 that a seven-page letter from two employees, listing a number of complaints about health and safety and claiming the employer had breached the contract of employment, constituted a grievance letter. The EAT said:
- The employee's intention is irrelevant. It does not matter whether the employee intended or did not intend to raise a grievance within the letter.
- A letter can be a statutory grievance letter even if it does not comply with the employer's contractual grievance procedure.
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For the modified (two step) grievance procedure to apply, the letter must include an outline of the grievance as well as the reasons for the grievance. A letter for the standard (three step) procedure only has to include an outline of the grievance.
The decision is at www.bailii.org/uk/cases/UKEAT/2005/0503_05_1810.html.
In Shergold v Fieldway Medical Centre a three-page resignation letter was held to be a grievance letter. In this case the employer, after receiving the resignation letter, set up a meeting with the employee and at the meeting invited the employee to set out the issues in a formal grievance letter. The employee did not do this, went through with her resignation, and claimed constructive unfair dismissal on the basis that the employer had not followed the statutory grievance procedure.
As in the previous case the employment tribunal said that the employee's letter had not been a step 1 statutory grievance letter, but the employment appeal tribunal disagreed. The EAT in this case said:
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The intention of the statutory procedures is to encourage conciliation, agreement, compromise and settlement. So anything that meets the minimum statutory requirement of being in writing can be a step 1 letter, even if it does not explicitly state that it is a grievance letter and even if it does not include all the details of the complaint.
- It was irrelevant that the complaint was included in a letter of resignation.
- Provided the letter meets the statutory requirement, there is no need for the employee to comply with a company or contractual grievance procedure.
This decision is at www.bailii.org/uk/cases/UKEAT/2005/0487_05_0512.html.
In a similar case, the EAT found on 13 October 2005 that a letter expressing unhappiness about an employer's action could constitute a grievance letter. In Commotion Ltd v Rutty Mrs Rutty had made an informal request under the Employment Rights Act for flexible working, and been refused. She then made a formal request to work flexibly, expressing her unhappiness at the earlier refusal. When she was again unreasonably refused, she resigned and in her resignation letter said, "As you know, I have raised this matter as a grievance with you". She then claimed constructive unfair dismissal. The employer argued that the tribunal could not hear the claim because the employee had not brought a grievance, but both the tribunal and EAT said that her written request to work flexibly was a written grievance and it would have been "nonsense" to require her to raise a further grievance before resigning. This decision is at www.bailii.org/uk/cases/UKEAT/2005/0418_05_1310.html.
More recently, on 3 May 2007, the employment appeal tribunal said that notes taken by the employer at an internal meeting could constitute a grievance letter. In this case the first stage of the employer's grievance procedure was an informal meeting with the employee's manager, who would record details of the grievance and attempt to resolve it. The employer thus had a written statement of what was clearly a grievance—even if that statement had not been written by the employee. The decision in Kennedy Scott Ltd v Francis is at www.bailii.org/uk/cases/UKEAT/2007/0204_07_0305.html.
CIPD GUIDANCE ON WHISTLEBLOWING
Updated 1/3/07. This information updates s.29.8 in The Voluntary Sector Legal Handbook 2nd edition.
The Chartered Institute of Personnel and Development (CIPD) updated in February 2007 its introductory guidance on whistleblowing and the Public Interest Disclosure Act 1998. It is at www.cipd.co.uk/subjects/empreltns/whistleblw/whistle.
POST-EMPLOYMENT VICTIMISATION FOR WHISTLEBLOWING
Added 26/8/06. This information updates s.29.8 in The Voluntary Sector Legal Handbook 2nd edition.
Where an employer victimises an employee after employment has ended--for example, refuses to give a reference--the employee normally cannot take action against the employer. But the employee can take action where the victimisation is because the employee brought a discrimination claim against the employer, threatened to bring a discrimination claim, or supported another employee who brought a discrimination claim.
This post-employment protection against victimisation has now been extended to whistleblowers--employees who have made protected disclosures under the Public Interest Disclosure Act 1998. The case involved Abbey National plc, which refused to provide a reference and provided negative references for an ex-employee who, when employed 10 years before, had voiced her concerns about how the building society was handling institutional investors' funds.
In a decision on 26 June 2006, the court of appeal said, "It simply makes no sense at all to protect the current employee but not the former employee, especially since the frequent response of the embittered exposed employer may well be dismissal and a determination to make life impossible for the nasty little sneak for as long thereafter as he can." The court also said it was irrelevant that the victimisation occurred several years after the employment ended.
The case indicates the importance of having clear whistleblowing procedures (see details of CIPD guidance above) and also a very clear policy about who can write references, who decides what they include, and circumstances under which references are not provided (or only the most basic information about dates of employment and nature of the work are provided). It is particularly important that an employee who has been involved in whistleblowing or in a discrimination claim is treated no worse, in relation to references or other post-employment action by the employer, than any other employee would be treated.
The decision in Diana Woodward v Abbey National plc is at www.bailii.org/ew/cases/EWCA/Civ/2006/822.html.
WHISTLEBLOWING DISCLOSURES
Added 30/8/03. This information updates s.29.8.2 in The Voluntary Sector Legal Handbook 2nd edition.
From 1 October 2003 the list of "prescribed persons" to whom whistleblowing disclosures can be made has been revised. The new list is in the Public Interest Disclosure (Prescribed Persons) (Amendment) Order 2003 which is at www.opsi.gov.uk/si/si2003/20031993.htm.
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