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 30
TERMINATION OF EMPLOYMENT

DISCIPLINARY, GRIEVANCE AND DISMISSAL PROCEDURES

Updated 11/11/06. 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 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:

• 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).
• The statutory procedures have to be used for virtually all dismissals, including the ending of a fixed-term contract, redundancy and early retirement.
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;
• It is unfair for an employer to dismiss without meeting its obligations under the relevant dismissal and disciplinary procedure;
• 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);
• Statutory grievance procedures (GPs) are to be used for all grievances (and grievances are defined very widely--see below).
• 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.
• 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).
• 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.

OFFERING RESIGNATION INSTEAD OF DISMISSAL

Added 14/12/03. This information updates s.30.4.8 in The Voluntary Sector Legal Handbook 2nd edition.
It is not uncommon for employers who do not want to go through a disciplinary and dismissal procedure to offer the employee the possibility of resigning--sometimes with a generous resignation package. The employment appeal tribunal ruled on 16 October 2003 that inviting an employee to resign can be taken as damaging and destroying the employment relationship, and is therefore in breach of the employer's duty of trust to the employee. Unless this can be shown to be a reasonable and proper way for the employer to act, it can give the employee grounds for resigning and claiming unfair dismissal. The case, Billington v Michael Hunter & Sons Ltd, is at www.employmentappeals.gov.uk/uploads/ukeat57803dm16102003/index.htm.

EXPIRED WARNINGS AND DISMISSAL

Added 4/6/06. This information updates ss.29.4.8 and 30.8 in The Voluntary Sector Legal Handbook 2nd edition.
A recent case in the Scottish Court of Session has confirmed that expired disciplinary warnings should not be used as a factor in dismissing an employee. The case involved an operator in a pharmaceutical company who was disciplined in July 2000 for a serious breach of health and safety procedures and was given a warning valid for 12 months. Sixteen months later there was another serious incident, and investigation showed that a number of operators had not been following procedures. The other operators were given warnings, but the operator was dismissed because of the previous warning--even though it had by then expired.

The court held that it was not reasonable for a warning that had expired to be taken into account.

This 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. Open-ended warnings should be used only for very serious offences.

Diosynth Limited v Morris Thomson is at www.bailii.org/scot/cases/ScotCS/2006/CSIH_5.html.

PERSONALITY DISMISSALS

Updated 4/6/06. This information updates s.30.8.7 in The Voluntary Sector Legal Handbook 2nd edition.
In Perkin v St Georges Healthcare NHS Trust, the Court of Appeal said on 12 October 2005 that dismissing an employee who has "a difficult personality" can be a fair dismissal, even if there are no problems with the employee's competence or integrity. Such a dismissal could come under the "some other substantial reason" provisions for a fair dismissal--provided the personality manifests itself in a way that gives a fair reason for the dismissal. The decision is at www.bailii.org/ew/cases/EWCA/Civ/2005/1174.html.

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