Discipline, Internal Investigations and Grievances

The EAT's decision in Birch and 99 others v Walsall Metropolitan Borough Council and others UKEAT/0121/10.

Have there been any further cases or guidance on the applicability of the ACAS code to SOSR dismissals since Cummings v Siemens Communications Ltd ET/3500013/10? Many thanks

The Acas arbitration scheme for unfair dismissal cases will come into effect on 21st May, 2001 in England and Wales and next year in Scotland.

The 2009 Acas Code of Practice on Disciplinary and Grievance Procedures, issued under section 207 of the Trade Union and Labour Relations (Consolidation) Act 1992. The current Code of Practice came into force on 6 April 2009 to coincide with the coming into force of sections 1-3 of the Employment Act 2008, which repealed the statutory dispute resolution procedures. Previous Codes of Practice issued in 2004 and 2000 are available, but are no longer in force.

A research paper evaluating the Acas Code of Practice on Disciplinary and Grievance Procedures has been published.

A legal update on the draft Acas guide on discipline and grievances at work.

Acas has published its policy discussion paper "New rules, new challenges: Acas' role in the employment tribunal system", which focuses on the current effectiveness of Acas' role in conciliating workplace disputes.

In Cyprus Airways Limited v Lambrou the EAT held that, where an employee relies on several acts of their employer when claiming constructive dismissal, it is not possible to sever those acts so as to reduce the number relied upon. In this case, the first of the employer's acts, which occurred before the statutory dispute resolution procedures came into force (and which did not therefore have to be the subject of a written grievance under the statutory grievance procedure), could not be severed from the three that had arisen or continued afterwards (which did). Since the three acts which required to be, had not been the subject of a written grievance and the first could not be severed from them, the tribunal did not have jurisdiction to hear the constructive dismissal claim.It is important to ensure that all the acts upon which an employee relies in support of their constructive dismissal claim are made the subject of the written grievance required by the statutory grievance procedure and that any claim subsequently submitted to a tribunal reflects the grievance raised.

In ADM Milling Limited v Hodgson, UKEAT/0051/07 the EAT has held that there is no need to raise a grievance in writing before bringing a claim based on a discriminatory dismissal.

Advice to an employee client who is facing a disciplinary procedure at work due to misconduct. The advice outlines the typical steps in a disciplinary procedure and the requirements of the Acas Code of Practice on disciplinary and grievance procedures. 

A checklist setting out the basic procedure for a disciplinary hearing. It takes account of best practice to ensure compliance with the law relating to unfair dismissal and the Acas Code of Practice. The checklist could also be used for formal hearings that could lead to warnings for capability or attendance. The checklist is written in plain language and could be sent to a business person.

In Airbus UK Limited v Webb the EAT has held that expired disciplinary warnings must be ignored when deciding on which disciplinary sanction to give an employee. Elias P stated that he considered the competing arguments to be finely balanced but chose to follow the Scottish Court of Session case, Diosynth v Thomson.

In Aitken v Weatherford UK Ltd the Scottish Court of Session (Inner House) held that an employer had not acted outside the "band of reasonable responses" in dismissing an employee who had admitted gross misconduct without seeking further information as to the employee's reasons for his actions. The employer had held a fair hearing at which the employee could have advanced his reasons if he wished.

In Ali v Sovereign Buses (London) Limited, in which the employee was dismissed for misconduct while criminal proceedings were still pending, the EAT reviewed the case law on the circumstances in which the employer can fairly dismiss an employee who has been advised not to comment on the allegations. In this case, the tribunals' decision that the dismissal was fair was overturned as the tribunal had not addressed the central question of whether the employer's investigation was adequate. The EAT also held that Article 6 of the ECHR did not give employees of private employers a "right to silence" in internal disciplinary proceedings.

The EAT has confirmed in Gibbs (t/a Jarlands Financial Services) v Harris that an employee can not rely on an ET1 as their written statement for the purposes of the statutory grievance procedures.

In Aptuit (Edinbugh) Ltd v Kennedy UKEATS/0057/06 the EAT held that the tribunal had erred in considering the application of the SDDP. In particular, it had erred in: Holding that the SDDPs require the right to appeal to be communicated in writing and for the employee to be "offered" an appeal. Neither of these are necessary requirements. Its approach to assessing the amount of the uplift for failure to follow the SDDP. The EAT held that the tribunal erred in taking into account factors that did not relate to the employer's failure to follow the SDDP. However, it is questionable whether this is a correct interpretation of the legislation, which implies no limits on the circumstances that can be taken into account. The EAT also reminded tribunals of the approach that they should take where they identify a legal issue that could affect an unrepresented party, and the importance of remaining impartial.

Is there any case law to suggest that there is a problem with demoting an employee and giving them a final written warning, so effectively two penalties?

The EAT upheld the tribunal's decision that a letter before action written by an employee's solicitor qualified as a statement of grievance for the purposes of the statutory grievance procedures. Read more.

The employment tribunal in Aspland v Mark Warner Ltd held that a solicitor's letter before action did amount to the raising of a grievance for the purposes of the statutory grievance procedures and so the claim should be admitted.

A leaflet jointly produced by the Department for Business, Enterprise and Regulatory Reform (BERR) (now the Department for Business, Innovation and Skills (BIS)), the Chartered Institute of Personnel and Development (CIPD) and the Advisory, Conciliation and Arbitration Service (Acas) to inform employers about the changes to dealing with workplace disputes from 6 April 2009.

An update on BERR's statement of common commencement dates and other forthcoming proposals for 2009.

A review by Michael Gibbons of the options for simplifying and improving all aspects of employment dispute resolution and recommending the repeal of the statutory dispute resolution procedures under Employment Act 2002.

BIS has issued a call for evidence on dealing with dismissals and compensated no-fault dismissals for micro businesses.

In Aziz v Crown Prosecution Service, the Court of Appeal held that the employment tribunal was correct to infer that discrimination on racial grounds had occurred where the employer had breached its own code in relation to disciplinary hearings and the employer could not give a satisfactory explanation of why the breaches had occurred.

I have a client who is claiming constructive dismissal. They resigned due to numerous events that cumulatively amounted to a fundamental breach of terms of the employment contract. As the employer did not have a chance to go through ACAS procedures with regards to dismissal, can I still include a claim for a 25% uplift of the compensatory award?? I base my claim on the fact that in response to incidents that swayed my clients decision to resign, no guidelines were followed.

Could you assist with the following query in employment law. If an incident has occured and an investigation has started whilst a final written warning is live but the warning becomes spent during the time of the investigation can it still be considered at the hearing. My view is that if it is the case that the warning was live at the time of the incident that is now being investigated it cannot be discounted for the purposes of investigating the current case (otherwise individuals would simply use delaying tactics to ensure this happened). Is this right in your view. Do you have any articles or case law that I could refer to. I've had a look at this article but can't find an answer.  

Can an employer increase a disciplinary sanction on appeal, by replacing the final written warning with a decision to dismiss, where the facts leading to the original warning have not changed? For example, the appeal decision maker takes the view that the disciplinary decision maker was simply too lenient.

I've read your practice notes on disciplinary hearings and warnings etc. In addition to the information contained there, I wonder if you could point me to any case law to support the premise of whether an employer can reasonably dismiss where employee is on a final written warning for a misconduct issue but then has an unreasonable level of intermittent short-term absences which in themselves, give rise to a further warning. There is insufficient evidence to reasonably conclude that the absences are themselves evidence of any misconduct.

I have a client who has a disciplinary hearing and she has been suspended for two weeks. She had a meeting last week and answered all the questions. She was sent a letter with further allegations and supporting witness statements. She feels she has not been given enough time and has asked whether she can walk out of the disciplinary hearing today? Her employer has not paid her and this has caused hardship at home. What can she do about this?

I have a question regarding misconduct outside of work as grounds for discipline/dismissal. A director of a company is currently under investigation by HMRC for tax discrepancies. As a result, the company may too be at risk of tax investigation. The most relevant express clause in the director's service contract is that they must perform their duties to a satisfactory standard. Could the company argue that the director has committed a wrongdoing which has indirectly prejudiced it as an employer (i.e. risk of tax investigation)? Could these serve as grounds that the continued employment of the director would 'likely have a negative impact on the employer's business'? I haven't managed to find case law upon which to draw an analogy. Many thanks for any help you can provide.

Can an employer dismiss someone for gross misconduct, despite the fact that the alleged act took place many months ago? Or, to put it another way, if there has been a long delay between when the employer knew and became aware of an act of gross misconduct but fails to take any disciplinary action for a number of months, does this delay affect upon the grossness of the misconduct itself (i.e. with the passage of time eating away at the "grossness" of the conduct and turning gross misconduct into mere misconduct), or simply impact upon the fairness of the dismissal?

We are conducting an investigation into an organisational complaint of bullying against our client's employee. This is neither a grievance nor a disciplinary, although it may lead to a disciplinary process. The alleged bullying has been ongoing for over 8 years and no warnings have been issued to the employee. Is there any case law to suggest that we are able to investigate only the more recent incidents (for example those occurring within the last 2 years) rather than have to investigate every incident over the entire 8 year period? We suggest using the older incidents only as background.

In a situation where an employee is on maternity leave and during that leave it comes to light that there may have been a breach of a fundamental term/s of the contract of employment, which potentially is continuing during the course of the maternity leave, would it be correct to say the organisation should use the same sort of investigation and possibly disciplinary process as it would had the person not been on maternity with the caveat that there would have to be more flexibility and understanding with regard to the timing of any meetings and perhaps their location? I don't see a great deal on this issue on the site and I'm keen to get a nudge in terms of whether I've correctly identified all the pitfalls. I would add that the question is posed on the basis that the leave period is in the early stages of OML Look forward to receiving your thoughts.

Can you please advise if it is competent for an ex-employee, who no longer has any ties to an organisation, to attend on occasion and act as Branch Secretary and Union Rep for a Union within that organisation? Perhaps worded differently the query might be, do you have to be an employee to be a Union Rep? Please also advise if there is an authority for your response.

My query is whether a dismissal is fair in circumstances where the employer initially informs the employee sanction is final written warning but HR intervenes (as allowed by policy) to say consistency demands dismissal and so the employee is then told they are to be dismissed. There is no significant delay in communication of the two different decisions. In essence can an employer say we got it wrong first time round and here is the correct decision after the first decision has been communicated to the employee?

Where an employee has been given a final written warning (to remain live for 12 months) and that employee is shortly due to go on maternity leave, is there any guidance on whether it would be reasonable to not count the maternity leave period as part of the 12 month period during which the final written warning remains live?

Is it a breach of procedure/the ACAS code for three people who are all involved in the same incident to have a joint disciplinary hearing, especially if one person requested that they have their own, separate disciplinary hearing? Thanks.

The EAT held that while employees, for the purpose of the standard grievance procedures under the Employment Act 2002, need not set out a statement of grievance in technical detail, any such statement must be expressed in such a way that an employer can be expected to appreciate that a relevant grievance is being raised. Read more.

A legal update on the EAT's decision in London Borough of Brent v Fuller UKEAT/0453/09.

Unreasonable delay and non-completion of the DDP (Yorkshire Housing Ltd v Swanson). Damages on withdrawal of an offer of employment (Cscape Strategic Internet Services Ltd v Toon).

A legal update on cases of interest to employment lawyers for the week ending 30 October 2009.

Suspension and the SDDPs (Wilf Gilbert (Staffs) Limited v Bunn). Dress codes: religious jewellery and indirect discrimination (R (on the application of Watkins-Singh) v (1) Governing body of Aberdare Girls' High School (2) Rhondda Cynon Taf Unitary Authority).

An update on revised CEDR employment ADR model clauses.

In CEX Limited v Lewis UKEAT/0013/07, the EAT applied the Court of Appeal's decision in Scope v Thornett [2007] IRLR 155 and the EAT's guidance in Software 2000 v Andrews UKEAT/0533/06 in an appeal from a tribunal's decision that no Polkey deduction should be made from the compensatory award of an employee who had been procedurally unfairly dismissed by reason of redundancy. The EAT held that the tribunal had to consider what would have happened but for the unfairness. The tribunal held that the employee had been automatically unfairly dismissed (section 98A(1), ERA 1996) and ordinarily unfairly dismissed (section 98, ERA 1996). It also held that the employer had not established, on the balance of probabilities, that had the relevant procedures been followed, the employee would still have been dismissed (section 98A(2), ERA 1996). The employer did not challenge these findings but challenged the tribunal's decision that, had the relevant procedures been followed, there was a "100% chance" the employee would have remained in employment. The EAT allowed the appeal; neither the evidence nor the tribunal's findings supported such a finding. It noted that, as the employer had not challenged the finding under section 98A(2) of ERA 1996 and had limited its appeal for a Polkey deduction to a maximum of 50%, this was the basis on which the matter was remitted to the same tribunal to deal with compensation. The employee's cross-appeal for an uplift higher than 10% under secti

This is a chapter from Employment Law in Europe (Bloomsbury Professional), which provides an up-to-date overview of the national employment laws of every EU member state, plus Norway and Switzerland. The third edition has been updated to reflect all changes to local legislation and recent case law in key areas which impact the employment relationship. These include:discrimination law, family friendly rights, working time and holiday, termination of employment and dismissal rights, employment disputes, key terms and conditions of employment, remuneration, the Acquired Rights Directive, employee representatives and collective issues. Chapter 7 and the index are FREE to view, as a sample of the book's contents. To view the other chapters, please subscribe to Books online.

This is a chapter from Employment Law in Europe (Bloomsbury Professional), which provides an up-to-date overview of the national employment laws of every EU member state, plus Norway and Switzerland. The third edition has been updated to reflect all changes to local legislation and recent case law in key areas which impact the employment relationship. These include:discrimination law, family friendly rights, working time and holiday, termination of employment and dismissal rights, employment disputes, key terms and conditions of employment, remuneration, the Acquired Rights Directive, employee representatives and collective issues. Chapter 7 and the index are FREE to view, as a sample of the book's contents. To view the other chapters, please subscribe to Books online.

This is a chapter from Employment Law in Europe (Bloomsbury Professional), which provides an up-to-date overview of the national employment laws of every EU member state, plus Norway and Switzerland. The third edition has been updated to reflect all changes to local legislation and recent case law in key areas which impact the employment relationship. These include:discrimination law, family friendly rights, working time and holiday, termination of employment and dismissal rights, employment disputes, key terms and conditions of employment, remuneration, the Acquired Rights Directive, employee representatives and collective issues. Chapter 7 and the index are FREE to view, as a sample of the book's contents. To view the other chapters, please subscribe to Books online.

This is a chapter from Employment Law in Europe (Bloomsbury Professional), which provides an up-to-date overview of the national employment laws of every EU member state, plus Norway and Switzerland. The third edition has been updated to reflect all changes to local legislation and recent case law in key areas which impact the employment relationship. These include:discrimination law, family friendly rights, working time and holiday, termination of employment and dismissal rights, employment disputes, key terms and conditions of employment, remuneration, the Acquired Rights Directive, employee representatives and collective issues. Chapter 7 and the index are FREE to view, as a sample of the book's contents. To view the other chapters, please subscribe to Books online.

This is a chapter from Employment Law in Europe (Bloomsbury Professional), which provides an up-to-date overview of the national employment laws of every EU member state, plus Norway and Switzerland. The third edition has been updated to reflect all changes to local legislation and recent case law in key areas which impact the employment relationship. These include:discrimination law, family friendly rights, working time and holiday, termination of employment and dismissal rights, employment disputes, key terms and conditions of employment, remuneration, the Acquired Rights Directive, employee representatives and collective issues. Chapter 7 and the index are FREE to view, as a sample of the book's contents. To view the other chapters, please subscribe to Books online.

This is a chapter from Employment Law in Europe (Bloomsbury Professional), which provides an up-to-date overview of the national employment laws of every EU member state, plus Norway and Switzerland. The third edition has been updated to reflect all changes to local legislation and recent case law in key areas which impact the employment relationship. These include:discrimination law, family friendly rights, working time and holiday, termination of employment and dismissal rights, employment disputes, key terms and conditions of employment, remuneration, the Acquired Rights Directive, employee representatives and collective issues. Chapter 7 and the index are FREE to view, as a sample of the book's contents. To view the other chapters, please subscribe to Books online.

This is a chapter from Employment Law in Europe (Bloomsbury Professional), which provides an up-to-date overview of the national employment laws of every EU member state, plus Norway and Switzerland. The third edition has been updated to reflect all changes to local legislation and recent case law in key areas which impact the employment relationship. These include:discrimination law, family friendly rights, working time and holiday, termination of employment and dismissal rights, employment disputes, key terms and conditions of employment, remuneration, the Acquired Rights Directive, employee representatives and collective issues. Chapter 7 and the index are FREE to view, as a sample of the book's contents. To view the other chapters, please subscribe to Books online.

This is a chapter from Employment Law in Europe (Bloomsbury Professional), which provides an up-to-date overview of the national employment laws of every EU member state, plus Norway and Switzerland. The third edition has been updated to reflect all changes to local legislation and recent case law in key areas which impact the employment relationship. These include:discrimination law, family friendly rights, working time and holiday, termination of employment and dismissal rights, employment disputes, key terms and conditions of employment, remuneration, the Acquired Rights Directive, employee representatives and collective issues. Chapter 7 and the index are FREE to view, as a sample of the book's contents. To view the other chapters, please subscribe to Books online.

This is a chapter from Employment Law in Europe (Bloomsbury Professional), which provides an up-to-date overview of the national employment laws of every EU member state, plus Norway and Switzerland. The third edition has been updated to reflect all changes to local legislation and recent case law in key areas which impact the employment relationship. These include:discrimination law, family friendly rights, working time and holiday, termination of employment and dismissal rights, employment disputes, key terms and conditions of employment, remuneration, the Acquired Rights Directive, employee representatives and collective issues. Chapter 7 and the index are FREE to view, as a sample of the book's contents. To view the other chapters, please subscribe to Books online.

This is a chapter from Employment Law in Europe (Bloomsbury Professional), which provides an up-to-date overview of the national employment laws of every EU member state, plus Norway and Switzerland. The third edition has been updated to reflect all changes to local legislation and recent case law in key areas which impact the employment relationship. These include:discrimination law, family friendly rights, working time and holiday, termination of employment and dismissal rights, employment disputes, key terms and conditions of employment, remuneration, the Acquired Rights Directive, employee representatives and collective issues. Chapter 7 and the index are FREE to view, as a sample of the book's contents. To view the other chapters, please subscribe to Books online.

This is a chapter from Employment Law in Europe (Bloomsbury Professional), which provides an up-to-date overview of the national employment laws of every EU member state, plus Norway and Switzerland. The third edition has been updated to reflect all changes to local legislation and recent case law in key areas which impact the employment relationship. These include:discrimination law, family friendly rights, working time and holiday, termination of employment and dismissal rights, employment disputes, key terms and conditions of employment, remuneration, the Acquired Rights Directive, employee representatives and collective issues. Chapter 7 and the index are FREE to view, as a sample of the book's contents. To view the other chapters, please subscribe to Books online.

This is a chapter from Employment Law in Europe (Bloomsbury Professional), which provides an up-to-date overview of the national employment laws of every EU member state, plus Norway and Switzerland. The third edition has been updated to reflect all changes to local legislation and recent case law in key areas which impact the employment relationship. These include:discrimination law, family friendly rights, working time and holiday, termination of employment and dismissal rights, employment disputes, key terms and conditions of employment, remuneration, the Acquired Rights Directive, employee representatives and collective issues. Chapter 7 and the index are FREE to view, as a sample of the book's contents. To view the other chapters, please subscribe to Books online.

This is a chapter from Employment Law in Europe (Bloomsbury Professional), which provides an up-to-date overview of the national employment laws of every EU member state, plus Norway and Switzerland. The third edition has been updated to reflect all changes to local legislation and recent case law in key areas which impact the employment relationship. These include:discrimination law, family friendly rights, working time and holiday, termination of employment and dismissal rights, employment disputes, key terms and conditions of employment, remuneration, the Acquired Rights Directive, employee representatives and collective issues. Chapter 7 and the index are FREE to view, as a sample of the book's contents. To view the other chapters, please subscribe to Books online.

This is a chapter from Employment Law in Europe (Bloomsbury Professional), which provides an up-to-date overview of the national employment laws of every EU member state, plus Norway and Switzerland. The third edition has been updated to reflect all changes to local legislation and recent case law in key areas which impact the employment relationship. These include:discrimination law, family friendly rights, working time and holiday, termination of employment and dismissal rights, employment disputes, key terms and conditions of employment, remuneration, the Acquired Rights Directive, employee representatives and collective issues. Chapter 7 and the index are FREE to view, as a sample of the book's contents. To view the other chapters, please subscribe to Books online.

This is a chapter from Employment Law in Europe (Bloomsbury Professional), which provides an up-to-date overview of the national employment laws of every EU member state, plus Norway and Switzerland. The third edition has been updated to reflect all changes to local legislation and recent case law in key areas which impact the employment relationship. These include:discrimination law, family friendly rights, working time and holiday, termination of employment and dismissal rights, employment disputes, key terms and conditions of employment, remuneration, the Acquired Rights Directive, employee representatives and collective issues. Chapter 7 and the index are FREE to view, as a sample of the book's contents. To view the other chapters, please subscribe to Books online.

This is a chapter from Employment Law in Europe (Bloomsbury Professional), which provides an up-to-date overview of the national employment laws of every EU member state, plus Norway and Switzerland. The third edition has been updated to reflect all changes to local legislation and recent case law in key areas which impact the employment relationship. These include:discrimination law, family friendly rights, working time and holiday, termination of employment and dismissal rights, employment disputes, key terms and conditions of employment, remuneration, the Acquired Rights Directive, employee representatives and collective issues. Chapter 7 and the index are FREE to view, as a sample of the book's contents. To view the other chapters, please subscribe to Books online.

This is a chapter from Employment Law in Europe (Bloomsbury Professional), which provides an up-to-date overview of the national employment laws of every EU member state, plus Norway and Switzerland. The third edition has been updated to reflect all changes to local legislation and recent case law in key areas which impact the employment relationship. These include:discrimination law, family friendly rights, working time and holiday, termination of employment and dismissal rights, employment disputes, key terms and conditions of employment, remuneration, the Acquired Rights Directive, employee representatives and collective issues. Chapter 7 and the index are FREE to view, as a sample of the book's contents. To view the other chapters, please subscribe to Books online.

This is a chapter from Employment Law in Europe (Bloomsbury Professional), which provides an up-to-date overview of the national employment laws of every EU member state, plus Norway and Switzerland. The third edition has been updated to reflect all changes to local legislation and recent case law in key areas which impact the employment relationship. These include:discrimination law, family friendly rights, working time and holiday, termination of employment and dismissal rights, employment disputes, key terms and conditions of employment, remuneration, the Acquired Rights Directive, employee representatives and collective issues. Chapter 7 and the index are FREE to view, as a sample of the book's contents. To view the other chapters, please subscribe to Books online.

This is a chapter from Employment Law in Europe (Bloomsbury Professional), which provides an up-to-date overview of the national employment laws of every EU member state, plus Norway and Switzerland. The third edition has been updated to reflect all changes to local legislation and recent case law in key areas which impact the employment relationship. These include:discrimination law, family friendly rights, working time and holiday, termination of employment and dismissal rights, employment disputes, key terms and conditions of employment, remuneration, the Acquired Rights Directive, employee representatives and collective issues. Chapter 7 and the index are FREE to view, as a sample of the book's contents. To view the other chapters, please subscribe to Books online.

This is a chapter from Employment Law in Europe (Bloomsbury Professional), which provides an up-to-date overview of the national employment laws of every EU member state, plus Norway and Switzerland. The third edition has been updated to reflect all changes to local legislation and recent case law in key areas which impact the employment relationship. These include:discrimination law, family friendly rights, working time and holiday, termination of employment and dismissal rights, employment disputes, key terms and conditions of employment, remuneration, the Acquired Rights Directive, employee representatives and collective issues. Chapter 7 and the index are FREE to view, as a sample of the book's contents. To view the other chapters, please subscribe to Books online.

This is a chapter from Employment Law in Europe (Bloomsbury Professional), which provides an up-to-date overview of the national employment laws of every EU member state, plus Norway and Switzerland. The third edition has been updated to reflect all changes to local legislation and recent case law in key areas which impact the employment relationship. These include:discrimination law, family friendly rights, working time and holiday, termination of employment and dismissal rights, employment disputes, key terms and conditions of employment, remuneration, the Acquired Rights Directive, employee representatives and collective issues. Chapter 7 and the index are FREE to view, as a sample of the book's contents. To view the other chapters, please subscribe to Books online.

This is a chapter from Employment Law in Europe (Bloomsbury Professional), which provides an up-to-date overview of the national employment laws of every EU member state, plus Norway and Switzerland. The third edition has been updated to reflect all changes to local legislation and recent case law in key areas which impact the employment relationship. These include:discrimination law, family friendly rights, working time and holiday, termination of employment and dismissal rights, employment disputes, key terms and conditions of employment, remuneration, the Acquired Rights Directive, employee representatives and collective issues. This chapter and the index are FREE to view, as a sample of the book's contents. To view the other chapters, please subscribe to Books online.

This is a chapter from Employment Law in Europe (Bloomsbury Professional), which provides an up-to-date overview of the national employment laws of every EU member state, plus Norway and Switzerland. The third edition has been updated to reflect all changes to local legislation and recent case law in key areas which impact the employment relationship. These include:discrimination law, family friendly rights, working time and holiday, termination of employment and dismissal rights, employment disputes, key terms and conditions of employment, remuneration, the Acquired Rights Directive, employee representatives and collective issues. Chapter 7 and the index are FREE to view, as a sample of the book's contents. To view the other chapters, please subscribe to Books online.

This is a chapter from Employment Law in Europe (Bloomsbury Professional), which provides an up-to-date overview of the national employment laws of every EU member state, plus Norway and Switzerland. The third edition has been updated to reflect all changes to local legislation and recent case law in key areas which impact the employment relationship. These include:discrimination law, family friendly rights, working time and holiday, termination of employment and dismissal rights, employment disputes, key terms and conditions of employment, remuneration, the Acquired Rights Directive, employee representatives and collective issues. Chapter 7 and the index are FREE to view, as a sample of the book's contents. To view the other chapters, please subscribe to Books online.

The Chartered Institute of Personnel and Development has published a report on the causes and costs of disputes in the workplace and the measures organisations are taking in their attempts to manage them. After canvassing 798 organisations covering more than 2.2 million employees the report concludes that, since the introduction of the dispute resolution procedures, disputes are less likely to be resolved informally, tribunal claims are just as likely to arise and tribunal hearings have become more complex.

In Clyde Valley Housing Association Ltd v MacAulay UKEATS/0045/07 the EAT overturned a tribunal's decision that the employee had complied with step one of the modified grievance procedure, on the grounds that she had not set out the "basis" of the grievance. In the EAT's view, the employee's "generalised complaint" (that she had been subjected to degrading and humiliating treatment such as to destroyed trust and confidence) was insufficient. While her letter described the character of the alleged conduct, it failed to set out the evidential basis for her complaint, in other words, the acts, conduct and events of which she was complaining: "who, what, where, when and why?"

In Codemasters Software Company Limited v Wong the EAT upheld an employment tribunal's decision that a claimant who had lodged an appeal the day before the expiry of the three-month time limit for an unfair dismissal claim had reasonably believed a dismissal or disciplinary procedure was under way. His unfair dismissal claim was therefore in time under regulation 15 of the Employment Act 2002 (Dispute Resolution) Regulations 2004. The decision is fairly fact-specific but does suggest a common-sense approach to the issues.

This Standard Clause can be included in a collective bargaining agreement (CBA) to set out a grievance procedure for unions and employers to use to resolve disputes about application and interpretation of CBAs. It is based on the National Labor Relations Act (NLRA), but may be used by private sector employers governed by another federal law or public sector employers. This Standard Clause has integrated drafting notes with important explanations and negotiating tips.

In GAB Robins (UK) Limited v Triggs the EAT held that tribunals should not apply the band of reasonable responses test to an employer's conduct of its grievance procedure where it is alleged that the conduct of the grievance procedure is the "last straw" giving rise to a constructive dismissal claim. The EAT also held that, where an employee is constructively (as opposed to actually) dismissed, tribunals must determine the extent of the employer's repudiatory conduct. In this case, a breach of the implied term of trust and confidence which was accepted in February 2005 covered the employer's conduct dating back to 2001 (including conduct which resulted in the employee being signed-off sick in September 2004), all of which fell within the "Johnson exclusion area" identified by the House of Lords in Eastwood v Magnox Electric Plc. As a result, the employee's claim for loss of earnings, including that resulting from her ill health, was to be treated as a consequence of her dismissal and was properly to be assessed (at the rate of full pay) by a tribunal under the statutory unfair dismissal regime (rather than in the civil courts by means of a common law claim).

A legal update on the Court of Appeal's decision in Edwards v Chesterfield Royal Hospital NHS Foundation Trust [2010] EWCA Civ 571.

In Ali v Sovereign Buses (London) Limited, in which the employee was dismissed for misconduct while criminal proceedings were still pending, the EAT reviewed the case law on the circumstances in which the employer can fairly dismiss an employee who has been advised not to comment on the allegations. In this case, the tribunals' decision that the dismissal was fair was overturned as the tribunal had not addressed the central question of whether the employer's investigation was adequate. The EAT also held that Article 6 of the ECHR did not give employees of private employers a "right to silence" in internal disciplinary proceedings.

A note dealing with the conduct of an investigation and subsequent disciplinary proceedings involving allegations of misconduct by an employee, taking account of the law of unfair dismissal and the 2009 Acas Code of Practice.

This Note addresses employee performance reviews, including the benefits and potential risks of conducting reviews, how reviews can be used in employment litigation and practical tips for conducting effective reviews. This Note addresses federal law. For information on state law requirements, see the State Q&A Tool under Related Content to the right.

In Abbey National PLC v Fairbrother the EAT confirmed that in a constructive dismissal case involving resignation in the context of an allegedly flawed grievance procedure, it is not only appropriate but necessary to ask whether the employer's conduct of the grievance procedure was within the band or range of reasonable responses to the grievance presented by the employee. Lady Smith also gave some guidance regarding a two stage analysis of whether the mutual relationship of trust and confidence had been breached in a constructive dismissal case. Lady Smith confirmed her guidance regarding the application of the range of reasonable responses test in another EAT decision on the same day as Fairbrother, Barratt v Accrington and Rossendale College.

In Pinkus v Crime Reduction Initiative the EAT overturned the employment tribunal's finding that it did not have jurisdiction to hear Ms Pinkus's unfair constructive dismissal claim. Ms Pinkus's employment had terminated on 14 April 2005, she raised a grievance by letter dated 17 June 2005 and her ET1 was received by the tribunal on 3 October 2005. The tribunal had incorrectly held that Ms Pinkus's grievance was that Crime Reduction Initiative was contemplating dismissing her and, in consequence, had incorrectly concluded that the statutory grievance procedures did not apply to her case. The EAT held that the statutory grievance procedures did apply and the time for submitting her ET1 had been extended by a further three months by Regulation 15 of the Employment Act 2002 (Dispute Resolution) Regulations 2004. Accordingly, Ms Pinkus's ET1 had been submitted in time and her claim was remitted to the tribunal for a merits hearing.

The DTI has published a supplementary review of the options for reform of the law relating to procedural fairness in unfair dismissal. The review will operate alongside the DTI consultation Success at work: Resolving disputes in the workplace, which is seeking views on the proposed repeal of the statutory dispute resolution procedures. The review proposes options to amend section 98A of ERA 1996, if the statutory dispute resolution procedures are repealed. Responses to this review are sought by 20 June 2007.

The Court of Appeal has held that an employee whose dismissal results from a breach of express contractual terms as to the conduct of disciplinary proceedings can, in principle, recover damages for lost future employment.

In Cooke v Secure Move Property Services Limited a tribunal held that an employee who resigned in anticipation of his dismissal for gross misconduct and brought a claim for constructive dismissal did not need to raise a grievance under the statutory grievance procedure. In the alternative, a letter he had written to his employer alleging bias in the conduct of a disciplinary procedure was sufficient to amount to a Step 1 statement of grievance.

A legal update on the Court of Appeal's decision in R (on the application of G) v X School and others [2010] EWCA Civ 1.

A legal update on the Court of Appeal's decision in Mezey v South West London & St George's Mental Health NHS Trust [2010] EWCA Civ 293.

The dismissal of an employee charged with an offence not connected with his employment (out of concern over how customers would view him) was unfair because the employers did not look at alternatives or discuss the matter with the customer.

The current rates and limits of certain statutory payments and employment tribunal awards. For previously applied rates and limits, see Checklist, Historical rates and limits for employment lawyers. For a one-page "at a glance" document containing key rates and limits, click Download PDF in the Actions box in the top right corner of this page.

In Piscitelli v Zilli Fish Limited the EAT found that a solicitor's letter before action had not raised an appeal against dismissal. The employee did not therefore have reasonable grounds for believing an internal appeal procedure was under way under regulation 15(2) of the Dispute Resolution Regulations 2004 and, as no automatic extension of time applied his claim was therefore out of time.

Where a contractual appeals procedure provides for a specific number of people to hear an employee's appeal against dismissal, it is substantive failure (not a procedural technicality) rendering the dismissal unfair, if the appeals panel is incorrectly constituted.

Before 6 April 2009, Schedules 3 and 4 to the Employment Act 2002 specified the types of claim in which a tribunal had to consider whether the parties had followed one of the statutory dispute resolution procedures (either a grievance procedure or a dismissal and disciplinary procedure). A surprising number of claims were not covered. This table gives a comprehensive list of possible tribunal claims and indicates whether they were covered by the procedures. The statutory dispute resolution procedures were repealed by the Employment Act 2008 from 6 April 2009, subject to a number of transitional provisions. They were replaced by a new regime based on a new Acas Code of Practice on Disciplinary and Grievance Procedures.

The Employment Appeal Tribunal has held that despite an occupational health recommendation for a phased return to work, it was not a reasonable adjustment to exempt an employee, whose long history of intermittent absences had been followed by a long-term absence, from compliance with the employer’s short-term absence policy.

The Employment Appeal Tribunal has held that the right to be accompanied at a disciplinary hearing includes a hearing at which a warning of a formal nature could be given.

The revised Advisory Conciliation and Arbitration Service code of practice on disciplinary and grievance procedures has been laid before Parliament.

The Department of Trade and Industry has issued draft amended regulations on statutory disciplinary procedures and statutory grievance procedures.

In Arriva North West & Wales v Colebourn the EAT held that, where there is no significant procedural defect in an initial disciplinary hearing which results in an employee being dismissed, evidence that emerges in a subsequent internal appeal can be taken into account by the tribunal in determining the reasonableness of the dismissal, even where the appeal is in the nature of a review rather than a rehearing. However, the evidence in question must relate to the original reason for the dismissal and not suggest that another reason would have been justified.

The Court of Appeal has held that a doctor was contractually entitled to legal representation at an internal disciplinary hearing and that Article 6 of the European Convention on Human Rights implied a right to legal representation in the circumstances.  

The Supreme Court has held that an employee is entitled to legal representation in disciplinary proceedings with a public employer when the outcome of those proceedings will have a substantial influence on the subsequent determination of the employee’s civil rights.

In Harding v Hampshire County Council the EAT held that it was reasonable for the employer, when deciding whether to dismiss an employee, to rely on a police investigation into allegations of the employee's gross misconduct and not carry out a re-investigation itself.

This business briefing highlights the key issues a business should consider when conducting a disciplinary procedure connected with misconduct or poor performance. Please note that this business briefing is aimed at non-lawyers.

In Diosynth Limited v Thomson the Inner House of the Court of Session confirmed that an employer cannot take into account an expired written warning when deciding the sanction for a subsequent disciplinary offence. In this case the decision to dismiss the employee was found to be unfair because it was clear that the employee would not have been dismissed if the written warning had not been taken into account.

The Employment Appeal Tribunal has held that an employer did not need to give an employee an opportunity to cross-examine witnesses at a disciplinary hearing.

This Practice Note outlines special obligations for private sector employers that discipline and discharge employees in a unionized workplace. These obligations flow from the National Labor Relations Act (NLRA) as enforced by the National Labor Relations Board (NLRB), and collective bargaining under the NLRA. Labor law in the private sector is primarily governed by federal law, including the NLRA and the Railway Labor Act (RLA), and this resource only covers the NLRA. This Note includes references to NLRB precedent issued after January 4, 2012 by recess appointees to the NLRB. In Noel Canning v. NLRB, the US Court of Appeals for the District of Columbia Circuit held that the recess appointments to the NLRB were invalid, calling into question whether any of the NLRB's decisions since January 4, 2012 are enforceable. Despite the DC Circuit's holding, the NLRB continues to issue decisions by the recess appointees, seek enforcement of those decisions and rely on the recess appointees' decisions as governing law (see Legal Update, DC Circuit Rules NLRB Recess Appointments Were Unconstitutional; Enforceability of All Recess Appointees' Decisions in Doubt). PLC Labor & Employment will continue to monitor developments and update this resource to reflect applicable law.

A Note discussing employee rights under the National Labor Relations Act (NLRA) and the issues employers should consider when seeking to discipline employees for the content of social media posts. This Note considers only the employee protections under the NLRA. This Note includes references to NLRB precedent issued after January 4, 2012 by recess appointees to the NLRB. In Noel Canning v. NLRB, the US Court of Appeals for the District of Columbia Circuit held that the recess appointments to the NLRB were invalid, calling into question whether any of the NLRB's decisions since January 4, 2012 are enforceable. Despite the DC Circuit's holding, the NLRB continues to issue decisions by the recess appointees, seek enforcement of those decisions and rely on the recess appointees' decisions as governing law (see Legal Update, DC Circuit Rules NLRB Recess Appointments Were Unconstitutional; Enforceability of All Recess Appointees' Decisions in Doubt). PLC Labor & Employment will continue to monitor developments and update this resource to reflect applicable law.

A standard form to record internal discrimination or harassment investigation findings. This Standard Document has integrated notes with important explanations and drafting tips. This Standard Document is based on federal law. For information on state law requirements, see the State Q&A Tool under Related Content to the right.

In ADM Milling Limited v Hodgson, UKEAT/0051/07 the EAT has held that there is no need to raise a grievance in writing before bringing a claim based on a discriminatory dismissal. Under section 32 of the Employment Act 2002 (EA 2002), a tribunal does not generally have jurisdiction to hear a claim of a type listed in Schedule 4 to the EA 2002 until an employee has first raised a grievance in writing with their employer and waited 28 days. Schedule 4 includes claims of discrimination. However, there is no requirement to raise a grievance prior to bringing a tribunal claim where the grievance is that the employer has dismissed or is contemplating dismissing the employee (regulation 6(5), Employment Act 2002 (Dispute Resolution) Regulations 2004). In Lawrence v HM Prison Service UKEAT/0630/06 the EAT (Elias P presiding) held that a "grievance" is a complaint about action or proposed action; it is not defined by reference to the reason for that action. Therefore, where an employee alleged that his dismissal was discriminatory, he was not required to raise a grievance before he could bring his unfair dismissal claim. Now, in ADM Milling Limited v Hodgson, the EAT (Underhill J presiding) has rejected a challenge to the Lawrence decision. The EAT rejected a submission that, on its true construction, regulation 6(5) does not apply to cases where, even though the act complained of may as a matter of fact consist of a dismissal, the basis of the complaint is that it const

The Northern Ireland industrial tribunal has held that an employee was fairly dismissed for making vulgar comments on his Facebook page about a female colleague.

In Christou and another v London Borough of Haringey UKEAT/0298/11 and 0299/11 the EAT considered whether the dismissal of two social workers involved in the Baby P case was fair.

In Loosley v Social Action for Health the EAT had to consider whether the employment tribunal was wrong to find a redundancy dismissal fair. The tribunal had found that the employer had not followed a fair procedure in failing to consider the employee for a job that would have been suitable alternative employment. The employer was influenced by a third party which preferred another employee for the role. The third party was funding that role. On the basis that the employer would have dismissed the employee had it followed a fair procedure, the tribunal held the dismissal to be fair and the EAT upheld the decision. The EAT also considered whether they had jurisdiction to apply section 98A(2) ERA 1996 when the tribunal may have failed to do so.

In Smith v Michelin Tyre PLC ETS/100726/07 the tribunal upheld a dismissal for gross misconduct where the employee's misconduct was a one-off breach of a no-smoking policy. The employee worked at one of the employer's factories using highly flammable materials. The tribunal held that the personal circumstances of the employee, who had been employed for 12 years, had to be weighed against the importance of the employer's no-smoking policy in preserving its business, property and the lives of its other staff. In this case the existence of a legislative ban on smoking in the workplace (in Scotland) did not significantly add to the employee's breach, as the employer had a long-standing policy of banning smoking in the workplace.

We have published a new Practice note, Dismissals: the effect of internal appeals, written by PLC Employment.

The EAT's decision in Martin v Devonshires Solicitors UKEAT/0086/10.

This Law Firm Publication by Cliffe Dekker Hofmeyr focuses on the importance of verifying the residency status of foreign employees before dismissal on the grounds of illegal status in South Africa. A recent judgement in Dunwell Property Services CC v Morgan Sibande and Others highlights the need for companies to adopt fair procedures when dismissing employees.

The Government has issued a further consultation paper on the secondary legislation that may be necessary as a result of the changes to dispute resolution proposed in the Employment Bill. In particular, the consultation paper covers proposed changes to: The definition of "relevant adviser" for the purpose of compromise agreements. The approach to interest on unpaid tribunal awards. Employment tribunals' power to make recommendations in discrimination cases. Whether certain claims can be dealt with by the tribunal without a hearing. Claims that can be dealt with by an employment judge sitting alone. In addition, the Government is consulting on a number of other issues, including the transitional provisions for the removal of the dispute resolution procedures and minor changes to the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2004 to address issues that have arisen since the Rules were last substantially amended.

Is there any guidance on the disclosure of communications between HR and managers relating to capability proceedings? I.e. if a dismissed employee requests a copy of these communications, could the communications be privileged? Many thanks.

Hello Do you have to raise a grievance relating to a whistleblowing claim in order to avoid any 25% reduction in compensation if successful? In other words, is there any case law which suggests that you do not need to raise a grievance relating to whistleblowing. Many thanks in advance.

The High Court's decision in R (Puri) v Bradford Teaching Hospitals NHS Foundation Trust [2011] EWHC 970 (Admin). (Free tweet)

It is my understanding that technically, the right to be accompanied by a colleague or union representative does not apply to redundancy meetings as section 10 of ERA 1999 only applies to a 'disciplinary or grievance' meeting. Do you have any further information on this point? Thanks

The Department of Labor's (DOL) Administrative Review Board recently ruled that the whistleblower protection provision in Section 806 of the Sarbanes-Oxley Act of 2002 (SOX) protects employees of private contractors, subcontractors or agents of publicly traded companies. The decision explicitly rejects the US Court of Appeals for the First Circuit's contrary reading of SOX in Lawson v. FMR LLC earlier this year.

In Draper v Mears Ltd, the EAT held that the approach to an employer's compliance with the statutory dismissal and disciplinary procedure should be similar to the approach adopted by the EAT in relation to compliance by an employee with the statutory grievance procedures. That is to say, the statement provided to an employee in accordance with step 1 of the standard dismissal and disciplinary procedure need only set out a brief statement of the grounds which have led the employer to contemplate dismissing the employee.

The DTI has confirmed that there is to be a review of the options for simplifying and improving all aspects of employment dispute resolution as introduced by the Employment Act 2002 and detailed in the Employment Act 2002 (Dispute Resolution) Regulations 2004. The independent review will be lead by Michael Gibbons, a member of the Better Regulation Commission. Recommendations for change are expected to be made in Spring 2007.

The DTI has published a timetable of legislative changes coming into force this year. Of greatest significance to employment lawyers are the long-awaited new TUPE Regulations (scheduled for 6 April but still not available at the time of writing) and the age discrimination legislation (scheduled for 1 October). A revised timetable will be issued in July 2006.

In CEX Limited v Lewis UKEAT/0013/07, the EAT applied the Court of Appeal's decision in Scope v Thornett [2007] IRLR 155 and the EAT's guidance in Software 2000 v Andrews UKEAT/0533/06 in an appeal from a tribunal's decision that no Polkey deduction should be made from the compensatory award of an employee who had been procedurally unfairly dismissed by reason of redundancy. The EAT held that the tribunal had to consider what would have happened but for the unfairness. The tribunal held that the employee had been automatically unfairly dismissed (section 98A(1), ERA 1996) and ordinarily unfairly dismissed (section 98, ERA 1996). It also held that the employer had not established, on the balance of probabilities, that had the relevant procedures been followed, the employee would still have been dismissed (section 98A(2), ERA 1996). The employer did not challenge these findings but challenged the tribunal's decision that, had the relevant procedures been followed, there was a "100% chance" the employee would have remained in employment. The EAT allowed the appeal; neither the evidence nor the tribunal's findings supported such a finding. It noted that, as the employer had not challenged the finding under section 98A(2) of ERA 1996 and had limited its appeal for a Polkey deduction to a maximum of 50%, this was the basis on which the matter was remitted to the same tribunal to deal with compensation. The employee's cross-appeal for an uplift higher than 10% under sec

In Home Office v Khan and another UKEAT/0257/07 the EAT upheld a re-engagement order made by the tribunal in an unfair dismissal case, even though this would inevitably result in payment of full compensation to the employees for the whole period since dismissal without any reduction for failure to mitigate loss. It also expressed concern that the re-engagement order in question was too focused on establishing a "process of re-engagement" and did not adequately set out the nature of the jobs in which the employees were to be re-engaged. The EAT also upheld the tribunal's decision to award an uplift of 25% (rather than the maximum 50%) in compensation under the Employment Act 2002 for the employer's breach of the statutory dispute resolution procedures. Although the failure was "deliberate", it was not "contumelious" or "irrational": the employer had taken the view, albeit wrongly, that it was not appropriate to proceed with grievance procedure while there were pending tribunal proceedings. It was also potentially relevant that the procedural failure in question did not in fact lead to any adverse consequences. The EAT did, however, comment that it will be good practice for a tribunal to set out briefly those factors that it has taken into account in setting the level of the award.

A standard form for recording details relevant to an employee counseling session for poor work performance or workplace misconduct. This Standard Document applies only to private, non-unionized workplaces. It is jurisdiction neutral. State or local law may impose additional or different requirements but this document will be useful and relevant to employers in every state. This Standard Document has integrated notes with important explanations and drafting tips.

This Legal Update highlights resources to help employers manage requests by employees to access their personnel files.

The EAT held in Scott-Davies v Redgate Medical Services that employees do not have a free-standing right to bring proceedings for breach of the statutory dispute resolution procedures where there is no underlying statutory claim. It also held that the procedures do not apply to the right to a statement of terms under section 1 of the Employment Rights Act 1996.

An update on Smith Knight Fay Ltd v McCoy UKEAT/0245/98.

The Employment Act (Northern Ireland) 2011 has been published.

An update on the Employment Act 2008, which received Royal Assent on 13 November 2008.

A brief summary of the law, including a flow chart to determine whether the Employment Act 2002 or the Employment Act 2008 applies to a claim based on an employee's grievance on or after 6 April 2009.

A survey of key changes to employment law and practice resulting from provisions of the Employment Act 2008 coming into force on 6 April 2009.

The Employment Bill 2007-08 was republished, as amended in Grand Committee, on 4 April 2008. While a date has yet to be set for the start of the Lords Report Stage, papers detailing proposed amendments to clause 4 of the Bill (determination of proceedings without a hearing) have now been published.

A legal update on the new amendments to the Employment Bill proposed by the Public Bill Committee in the House of Commons.

The Employment Bill received its second reading in the House of Lords on 7 and 8 January 2008. The Grand Committee has now started its consideration of amendments. It sat on 4 February 2008 and the debate will resume on 25 February 2008. Amendments proposed by the House of Lords have previously been reported in Legal updates, Employment Bill: House of Lords amendments to be debated and Employment Bill: Further amendments published for House of Lords debate.

The Employment Bill was read in the House of Lords on 7 and 8 January 2008 and two sets of amendments have since been published for consideration in Grand Committee of the House of Lords on 4 February 2008.

The Employment Bill (Session 2007-08), which was published in the House of Lords on 6 December 2007, received its second reading on 8 January 2008. The Bill will now move to the Committee stage. For information on the content of the Bill, see Legal update, Employment Bill published. See House of Lords Hansard, 8 January 2008: column 636.

In his budget statement on 21 March, the Chancellor of the Exchequer Gordon Brown proposed the further extension of risk-based regulation into employment tribunals. In Chapter 3 of the Economic and Fiscal Strategy Report: Meeting the Productivity Challenge he recommends the implementation of the Hampton Review, "Reducing administrative burdens: effective inspection and enforcement" and consulting on its application to employment tribunals.The DTI has in response published the findings and recommendations of the Gibbons Review, an independent review of the employment dispute resolution procedures, which calls for a radical overhaul of the current approach to resolving workplace disputes. See Better Dispute Resolution: A review of employment dispute resolution in Great Britain. The leading recommendation of the review is that the Government should repeal the statutory dispute resolution procedures introduced by the Employment Act 2002 (Dispute Resolution) Regulations 2004. The DTI has also launched a consultation, Success at work: Resolving disputes in the workplace, which seeks views on how to improve the way employment disputes are resolved, while preserving existing employees' rights. The Government has stated that it is committed to piloting any new approach to dispute resolution that follows the consultation.

Employment Law in Europe (Bloomsbury Professional), provides an up-to-date overview of the national employment laws of every EU member state, plus Norway and Switzerland. Each chapter, devoted to a different jurisdiction, outlines the key employment issues to assist you in anticipating various circumstances across the continent and helps you make full use of all local advice available. The third edition has been updated to reflect all changes to local legislation and recent case law in key areas which impact the employment relationship. These include:discrimination law, family friendly rights, working time and holiday, termination of employment and dismissal rights, employment disputes, key terms and conditions of employment, remuneration, the Acquired Rights Directive, employee representatives and collective issues. Chapter 7 and the index are FREE to view, as a sample of the book's contents. To view the other chapters, please subscribe to Books online.

In Epstein v Royal Borough of Windsor and Maidenhead UKEAT/0250/07 the EAT confirmed that disparate treatment of employees in similar situations involving misconduct will only be relevant in limited circumstances. This case involved two lifeguards of a pool who were on duty while an incident occurred involving a swimmer. Following a disciplinary procedure, one lifeguard was dismissed but no sanction was imposed on the other one. The EAT held that the issue of disparity of treatment between employees was not relevant as long as the employer reached a decision which fell within the band of reasonable responses, which the employer had.

In Airbus UK Limited v Webb [2008] EWCA Civ 49 the Court of Appeal overturned the decision of the tribunal (which had been subsequently upheld by the EAT) that an employee was unfairly dismissed because the employer had taken into account an expired warning in its decision to dismiss. The tribunal erred in law in holding that it was required by Diosynth Ltd v Thomson [2006] IRLR 284 to find that a previous spent warning should be ignored for all purposes. The Court confirmed Diosynth is authority for the fact that an employer will be acting unreasonably in relying on an expired warning as the principal reason to dismiss an employee; it did not decide that spent warnings can never be taken into account. The Court also found that Diosynth could be distinguished from this case. Whereas in Diosynth the expired warning tipped the balance in favour of dismissal (as the other factors taken together would not have justified dismissal), in this case the employee's misconduct on its own was the principal reason for the dismissal. This is an important decision for employers and provides scope for an employer to take into account previous similar misconduct in deciding whether to dismiss an employee for subsequent misconduct, even where the previous misconduct was the subject of an expired warning.

An update on the related cases of Remploy Limited v Shaw UKEAT/0452/08 and Carter v London Underground Limited and Transport for London UKEAT/0292/08.

There is no implied contract term not to be unfairly dismissed. When assessing employees' damages for dismissals in breach of contract and disciplinary procedures, the tribunal must consider how the contract could have been lawfully terminated.

The Occupational Safety and Health Administration (OSHA) issued final regulations on July 9, 2012 on the whistleblower provisions of the Consumer Product Safety Improvement Act of 2008, establishing the final procedures and time frames for handling retaliation complains under the Act.

In First West Yorkshire Limited t/a First Leeds v Haigh UKEAT/0246/07 the EAT held that the reasonable employer should give proper consideration to an ill-health retirement scheme before it dismisses an employee for long term sickness. In this case, the question of whether the employee's condition was permanent (and thereby fulfilled the necessary requirement for an ill health pension) was not answered before the employee was dismissed. The tribunal had been entitled to find that the employer should have taken advice on this question before deciding whether to dismiss. Given the employer had wished to avoid the possible costs of funding an enhanced ill-health retirement pension, section 98A(2) of the Employment Rights Act 1996 (which reverses the Polkey rule in cases of procedural default) did not apply.

In Gryf-Lowczowski v Hinchingbrooke Healthcare NHS Trust the High Court refused to permit an employer to rely on the doctrine of frustration of contract where it found that obligations under a contract of employment had not yet become incapable of performance. Gray J also held that it was the employer's default which had contributed to the potentially frustrating event. Gray J held that injunctive relief was appropriate in order to enable the employee to take advantage of the appropriate procedures in his contract of employment.

The EAT held that the requirements of the Employment Act 2002 were satisfied in a case of constructive dismissal where the employee's grievance was contained in and consisted of a letter of resignation. Read more.

In Giles v Cornelia Care Homes the Southampton Employment Tribunal found that an employer who required a part-time female employee to work full-time or at least 25 hours per week in the office, and did not consider other suitable flexible working options (including working partly from home) had indirectly discriminated against her on the grounds of her sex. The tribunal also increased the compensation awarded to the employee as the employer failed to respond to the employee's written grievance in accordance with the statutory grievance procedures.

The government has published its response to the consultation launched in March 2007, Success at work: Resolving disputes in the workplace, which followed the recommendations of the Gibbons Review. The consultation (which closed in June 2007) sought views on a number of measures to improve the resolution of workplace disputes. Many of the issues raised in the consultation have been foreshadowed by the proposals contained in the Employment Bill, which is currently making its way through Parliament. Nevertheless, the response provides an interesting summary of the government's reasons for those proposals. It also highlights the suggested amendments which will be the subject of separate consultation and provides a useful summary of the proposed fast-track tribunal system.

An update on Suffolk Mental Health Partnership NHS Trust v Hurst and others [2009] EWCA Civ 309.

In Bottomley v Wakefield District Housing UKEAT/0550/07 the EAT overturned an appeal from a tribunal's decision that the claimants' grievance letter had not complied with step 1 of the standard grievance procedure (SGP). The claimants had, through their solicitors, submitted statutory equal pay questionnaires and written grievances to their former employer, a local authority, complaining that they were not receiving equal pay with a number of the local authority's employees. The claimants then transferred into the respondent's employment under TUPE, but the comparators did not. Their solicitors forwarded copies of the earlier grievances to the respondent with a covering letter, before bringing claims under the Equal Pay Act 1970. The tribunal held that this was not a valid step 1 grievance as it could not reasonably have been interpreted as having been directed at the respondent or requiring any action by it. However, the EAT held that the requirements of a step 1 grievance are minimal and the employees in this case had clearly set out their complaint in writing and sent it to the respondent in accordance with the SGP.

A basic grievance procedure taking account of the Acas Code of Practice on Disciplinary and Grievance Procedures and the right to be accompanied under section 10 of the Employment Relations Act 1999.Integrated drafting notes. This document has integrated drafting notes embedded within the text. Click on a heading to read the note. See the Actions box on the right for additional viewing options.

In Holc-Gale v Makers UK Ltd the EAT confirmed that a questionnaire under the Equal Pay Act 1970 (even those parts that set out the basis for the potential claim) could not amount to a grievance for the purposes of the statutory grievance procedure.

Comprehensive BERR guidance on the Employment Act 2002 (Dispute Resolution) Regulations 2004 and associated provisions in the Employment Act 2002 (URN 04/1103).

A Checklist outlining the steps in-house lawyers should take when a senior executive becomes the target of a government investigation.

In Harding v Hampshire County Council the EAT held that it was reasonable for the employer, when deciding whether to dismiss an employee, to rely on a police investigation into allegations of the employee's gross misconduct and not carry out a re-investigation itself.

In The Highland Council v (1) TGWU/Unison (2) GMB and (3) Individual Claimants UKEATS/0020/07 the EAT considered whether claimants in equal pay cases had complied with the requirements of the statutory grievance procedures when the claims they presented to the tribunal identified different comparators to those identified in their grievance letters. The EAT held that the exercise of comparison was so fundamental to an equal pay claim that a comparator must be specified in a grievance, at least by reference to job or job type. There did not have to be an absolute match between comparator job titles in the grievance and ET1, rather they had to be substantially or materially the same. The EAT also provided guidance on the options open to a claimant if, having submitted a written grievance, they discovered materially different comparator(s) to those identified in their grievance.

The EAT confirmed that a questionnaire under the Equal Pay Act 1970 (even those parts that set out the basis for the potential claim) could not amount to a grievance for the purposes of the statutory grievance procedure. Read more.

A Checklist to help employers minimize the legal risks presented by employer-sponsored holiday parties. This checklist addresses sexual harassment prevention, avoiding harms created by alcohol consumption, workers' compensation liability, and wage and hour claims. This resource is jurisdiction-neutral. For information on state law requirements, see the State Q&A Tools under Related Content to the right.

In Homeserve Emergency Services Ltd v Dixon UKEAT/0127/07 the EAT held that, on the facts of the case, it was implicit in the wording of a step one letter under the standard disciplinary and dismissal procedure (SDDP) that the employee was at risk of dismissal. Therefore, the fact that the letter did not explicitly refer to dismissal did not constitute a breach of the SDDP. Furthermore, information as to the "basis" of the allegation (which, according to step 2 of the SDDP, must be given before the meeting) need not necessarily be given after the step one letter, and could be given beforehand. In this case the employee had been caught red-handed and had been challenged on his misconduct at the time. He was then given the step one letter and invited to a meeting. This was sufficient to satisfy the SDDP.

How does an employer get office equipment back from an employee on long-term sick leave, having already requested their return in face-to-face meeting, by phone and by letter (on two occasions).

I am looking for information on dealing with a grievance submitted by a former employee who has now left the company. Thanks.

In Wood v. SatCom Marketing, LLC, the US Court of Appeals for the Eighth Circuit, in a whistleblower suit brought by an employee, upheld a district court's decision to grant summary judgment in favor of the employer. The Eighth Circuit found that although the employee succeeded in establishing a prima facie case of retaliation, the employer was able to demonstrate a legitimate, non-retaliatory reason for terminating the employee, on the basis of next step of the McDonnell Douglas framework.

An employee was dismissed for gross misconduct. The allegation against them for which they were dismissed was very tightly framed. Are you aware of any case authority or guidance which would support a finding of a fair dismissal for misconduct but not in respect of the actual allegation which was upheld but in respect of another finding in the disciplinary investigation which is very closely connected to the actual allegation?

This is the index to Employment Law in Europe (Bloomsbury Professional), which provides an up-to-date overview of the national employment laws of every EU member state, plus Norway and Switzerland. The third edition has been updated to reflect all changes to local legislation and recent case law in key areas which impact the employment relationship. These include:discrimination law, family friendly rights, working time and holiday, termination of employment and dismissal rights, employment disputes, key terms and conditions of employment, remuneration, the Acquired Rights Directive, employee representatives and collective issues. This index and chapter 7 are FREE to view, as a sample of the book's contents. To view the other chapters, please subscribe to Books online.

The EAT in Alexander v Bridgen Enterprises Ltd gave guidance on what information has to be provided by employers as part of the statutory dismissal and disciplinary procedure and considered the effect of section 98A(2) of the Employment Rights Act 1996 (the so-called reversal of Polkey).

A flowchart outlining different stages of an internal investigation, including common issues to consider and practical tips.

A Checklist of issues and obligations for employers to consider when investigating employee misconduct and determining whether to discipline or discharge a unionized employee. It addresses special obligations for private sector employers that conduct investigative interviews of, and discipline, unionized employees. These obligations flow from the National Labor Relations Act (NLRA) as enforced by the National Labor Relations Board (NLRB), and collective bargaining under the NLRA. Labor law in the private sector is primarily governed by federal law, including the NLRA and the Railway Labor Act (RLA), and this resource only covers the NLRA.

Is there any need to have a separate capability procedure distinctive from a disciplinary procedure in view of the way ACAS code deals with capability issues as a part of the disciplinary process?

Act for employer of a bus driver who did not report for duties without explanation. Week later found out he was in custody on remand for a serious offence. Now 2 weeks on client has found where the employee is held on remand and he has been told by a warden that given the serious nature of offence he is likely to be on remand for some time. The prison will not disclose the nature of the offence. Client is a small employer and can't carry on indefinitely with missing staff member. Is it safe to dismiss? Do we write to employee in prison and ask for his update on current position/prospects of return then in the absence of response or inadequate response then dismiss? Many thanks  

If an employee on maternity leave is being bullied by her line manager, does she have any additional claims given that she is on maternity leave or should she simply submit a grievance in the usual way?

This Law Firm Publication by Jackson Lewis LLP discusses Michigan's Internet Privacy Protection Act, which prohibits employers and prospective employers from requiring employees and applicants to grant access to, allow observation of or disclose information used to access their private Internet and e-mail accounts. The Act, which is effective as of December 28, 2012, also applies to educational institutions and their students, and prohibits employers from discharging, disciplining, failing to hire or otherwise penalizing persons who refuse to disclose information allowing access to those accounts. Anyone violating the Act is guilty of a misdemeanor punishable by a fine of up to $1,000.

An agreement that allows parties with similar legal interests, who are involved in an investigation or legal proceeding, to share information with each other without waiving the attorney-client privilege, work product protection or other applicable privilege or protection. This agreement may also protect against the disqualification of one party's counsel as a result of sharing confidential information with the other parties to the agreement. This Standard Document has integrated notes with important explanations and drafting tips.

In Kennedy Scott Limited v Francis the EAT upheld a tribunal chairman's decision that a note made by an employee's manager during a meeting and which contained "various details of complaints... which could, at least in places, reasonably be expected to raise with any employer reading them, concerns about allegations of sex and race discrimination" was a written statement of grievance under step one of the standard grievance procedure. Whether step one has been complied with will always depend on the facts of the case. However, the focus is on substance, not technicality. Employers should know where they stand but, in providing employers with that knowledge, the threshold to be crossed by employees should not be set high, and should not place in their way unduly legalistic obstacles. Step one does not require the employee to physically write the statement that is submitted to their employer.

The Supreme Court in R (on the application of G) v Governors of X School [2011] UKSC 30 considered whether an employer's refusal to allow an employee to be legally represented at a disciplinary hearing breached his Article 6 rights. (Free access)

An overview of the changes in employment law that will take effect from April 2007 onwards.

An overview of the changes in employment law that come into effect on 1 October 2006.

Letter to be used as part of a disciplinary procedure.

This document contains the paragraphs dealing with garden leave, restrictive covenants and associated matters which can be included in a letter dismissing a senior employee or in a letter acknowledging their resignation.

This letter can be adapted for use following an employee's appeal against dismissal (for any reason, including conduct, capability, redundancy, illegality or some other substantial reason), or against the employer's handling of a grievance.

Letter to be used to confirm dismissal for misconduct or poor performance following previous warnings and a disciplinary or capability hearing.

This letter can be used for a variety of appeals, including those concerning grievances, disciplinary action and dismissals.

Letter confirming dismissal without notice for gross misconduct (with or without previous warnings) following a disciplinary hearing.

A flow chart summarising the principles of unfair dismissal and the adjustments that can be made to compensation.

The Better Regulation Executive published this report in November 2010, which looked at the impact of regulation on the UK's smallest businesses.

The Court of Appeal has held that a tribunal did not err when it found that, despite an employer’s failure to consider evidence that might have shown that the employee had not committed the misconduct alleged, a final written warning had been issued in good faith.

In London Borough of Hounslow v Miller the EAT (Elias P sitting alone) has clarified the application of rule 1(8) of the Employment Tribunal Procedure Rules 2004 where a claim has been presented to the tribunal before a grievance has been raised. The EAT held that tribunals do not have jurisdiction to stay the ET1 in these circumstances. This case also considers if the tribunal chairman was correct to grant an extension of time for presentation of an ET1 under section 111 of the Employment Rights Act 1996 to allow an unfair dismissal claim to be pursued when the employee did not know that he had such a claim.

In GAB Robins (UK) Limited v Triggs [2008] EWCA Civ 17 the Court of Appeal held that, while loss flowing from a dismissal should be compensated by a tribunal in unfair dismissal proceedings, loss flowing from an employer's antecedent breaches of the implied term of trust and confidence can only be claimed as part of a common law claim for damages in the civil courts. Overturning the EAT's decision, the Court of Appeal held that Mrs Triggs could have a common law claim for loss caused by GAB Robins' conduct prior to her dismissal (which had caused her to be signed off work). This was distinct from loss flowing from her dismissal, which resulted from her decision to accept her employer's conduct, not the conduct itself. Therefore, loss flowing from her dismissal would take account of the fact that she was in receipt of sick pay that was shortly to be exhausted (as opposed to her normal rate of pay).

The EAT held that the term "contemplating" a dismissal involves the employer having considered a course of action which might result in dismissal but the decision to dismiss not having been made. Read more.

The FSA has imposed a financial penalty of £160,000 on Jay Alan Rutland, a senior broker at Pacific Continental Securities (UK) Limited, for engaging in the market abuse offence of improper disclosure under section 118(3) of FSMA.

The EAT held that a letter from an employee giving general reasons for his immediate resignation was sufficient to raise a grievance for the purposes of the statutory grievance procedures under the Employment Act 2002. Read more.

In Patel v Leicester City Council the EAT considered whether a tribunal had properly applied each of the three steps of the standard SDDP. Whilst finding it difficult to "shoehorn" the facts of the case into the statutory language, it agreed with the tribunal's reasons in finding that step one had been fulfilled. The step one letter from the employer had not been sent too early, despite the potential dismissal not being under active consideration when the letter was sent. Neither, despite being sent after a meeting at which the circumstances which might lead to the employee's dismissal had been discussed, had the letter been sent too late. It found that step two had been fulfilled but the EAT relied on different grounds from those used by the tribunal. In doing so, it held that a step two meeting does not have to be instigated by the employer. However, the EAT remitted the question of whether the "inordinate" six month delay had been unreasonable (which would depend on the facts of the case) to the tribunal, as the tribunal had not dealt with that question in its decision.

A memorandum from in-house counsel advising company employees on how to maintain the attorney-client privilege over their communications with the company's attorneys, and further explaining the nature of counsel's relationship with the company and its employees.

Model questions for interviewing a complaining employee, witnesses and individuals involved in alleged workplace discrimination. This Standard Document has integrated notes with important explanatory and drafting tips. This Standard Document is based on federal law.

In O'Neil v Wooldridge Ecotec Ltd UKEAT/0282/07 the EAT held that the modified dismissal procedure (MDP) did not apply to the summary dismissal of an employee for gross misconduct because the employer had waited until the day after it became aware of the misconduct before dismissing the employee and had therefore not dismissed him "immediately" after becoming aware of the misconduct. In any event, the employer had not complied with step one of the MDP, as the letter it gave to the employee following dismissal did not set out what it was the employee was alleged to have done that constituted gross misconduct.

Hi, Please could you assist me. We have dismissed an employee for being violent in the workplace. He has since been violent towards the disciplinary meeting chair who dismissed him and threatened other people in the company. Because of this we do not want to allow him to appeal as he is violent and he may be violent to the appeal chair also. Are there any circumstances, such as in which we can reject an application to appeal? Thanks

I have a client who was referred to Occupational Health (upon request to their line manager) to be assessed. They were told they had RSI and Occupational health team recommended some adjustments in the workplace. These adjustments were made. Following this, there were several further referrals to Occupational health, each resulting in recommendations which were duly implemented. Recently, my client had complaints that her chair was not set up in a way that was helping her work and made a request to be seen again by occupational health for an assessment. This time her line manager refused saying that my client was not disabled under the Equality Act 2010 and thus there was no requirement to have her assessed and thus no new chair was provided. The employer then issued notice of dismissal. During the time my client complained of RSI at work after adjustments were made, the employer offered her 3 alternative jobs. 2 involved her staying at the same desk which was clearly unsatisfactory, the other was not detailed to her (no job description or idea of location as to where the job would be) so she did not accept this. Question: If my client can show that she did come under the Equality Act (and has proof from Occupational health to show it) has the employer been unreasonable in not allowing my client to be assessed for a new chair and furthermore unfair in dismissing her? (There is written evidence from the employer that they refuse to treat her as being disabled and pr

President Obama signed into law the National Defense Authorization Act for Fiscal Year 2013 (NDAA), which expands whistleblower protections for employees of contractors and subcontractors with the Department of Defense (DOD) and the National Aeronautics and Space Administration (NASA) and establishes a four-year pilot program to enhance whistleblower protections for most other federal contractors and subcontractors.

Information about new and revised materials from PLC Employment on changes under the Employment Act 2008 and the new Acas Code of Practice.

On November 3, 2011, the Department of Labor's Occupational Safety and Health Administration (OSHA) issued interim final rules that, among other things, increase employees' options for filing complaints under the whistleblower provisions of the Sarbanes-Oxley Act (SOX) and clarify that SOX covers subsidiaries of publicly traded companies.

Parliamentary question on age discrimination cases. Meeting at No. 10 on agency workers. Research finds increase in number of workers wishing to work beyond 65. CIPD launches conflict management guide for managers. Series of European Council meetings on gender equality and employment. GLA closes Suffolk gangmaster's business down. US GE lawyer successful in first round of class-action sex discrimination law suit.

Implementation date for the regulations on discrimination in goods and services on the grounds of sexual orientation. The TUC publishes a guide to negotiating smoke-free workplaces. The Law Society publishes its response to the Acas policy discussion paper on its role in the employment tribunal system. Data on licenced gangmasters. Acas has updated its advisory booklet on redundancy handling. The Government has launched an initiative to improve treatment of mental health problems in the workplace. European Commission report, Making work pay. Dismissal of members of the territorial army. Peter Lewis, a former global head of equity trading at HSBC, has been allowed to appeal his claim that he was dismissed because of his sexual orientation.

CEHR and Women and Equality Unit launch Britain's contribution to the European Year of Equal Opportunities for All. ILO study finds emergence of new forms of workplace discrimination. Poor diversity data still no bar to companies winning contracts. ONS study finds twice as many women as men work in the public sector. CEHR accused of disability and sex discrimination. DRC issues compliance notices to public bodies who have failed to implement disability equality schemes. DCLG produces guidance on sexual orientation regulations. Survey finds that almost one-third of UK employees work non-standard hours. Updated materials on the Business Link website.

TUC renews calls for Community Day bank holiday. Law Society survey on recoupment certificate delays. LSC launches further consultation on proposed equality and diversity body. TAEN publishes briefing on Government programmes on employment and age. DBERR publishes guide for employers and employees. TUC launches website for Polish workers.

Former employees take Deutsche Bank to the High Court Lords approve sexual orientation regulations Proposals in EU Green Paper may adversely affect self-employed workers Female leaders "set up to fail" Employees fear disclosing HIV status to employers The increasing importance of diversity policies Reap the benefits of going to work Acas updated materials on working time, conflict management and gender equality

Study shows employers support flexible working. Union membership suffers biggest drop in nine years. NICE recommends employers should help smokers quit. Employment tribunal hearings rise by 25%. Europe against violence and harassment at work. Work Wise Week: May 2007. Acas new and updated materials.

The Law Society's Employment Law Committee has been invited to make representations to the DTI consultation on the dispute resolution procedures on behalf of employment lawyers. Practitioners are invited to complete a brief questionnaire before the end of the consultation period on 11 August 2006. Acas has updated its Advisory booklet - Stress at work.

New Equalities Office at the DWP to take responsibility for equality. EFA report finds workplace ageism still "endemic". Local councils to borrow £500 million to settle equal pay claims. Council fined for failing to produce correct wage records. Supermarket policy causes a stir. Acas holiday and holiday pay advice leaflet updated.

Acas to receive £37 million as part of the simplification of the dispute resolution system. Birmingham City Council workers strike over equal pay changes. Police Federation can challenge decision not to backdate pay settlement. RAF officer wins claim for unpaid salary.

The National Labor Relations Board (NLRB) recently released an advice memorandum dated January 29, 2013 stating that an employer's rule categorically prohibiting employees from disclosing information about employee investigations is unlawfully overbroad under the NLRB's decision in Banner Health.

An update on the High Court's decision in Lakshmi v Mid Cheshire Hospitals NHS Trust [2008] EWHC 878 (QB).

The employment tribunal in Noskiw v Royal Mail Group plc dismissed a disability discrimination claim because the employee did not comply with the statutory grievance procedures prior to presenting his claim.

This Law Firm Publication by Ogletree, Deakins, Nash, Smoak & Stewart, P.C. discusses the Arizona Court of Appeals' recent holding in The Salvation Army v. Bryson, that attorney-client privilege under Section 12-2234 of the Arizona Revised Statutes covers any communications between a corporate lawyer and corporate employees made to obtain information in order to provide legal advice to the entity, employer or employee. The decision confirms that the Arizona legislature intended to expand attorney-client privilege beyond communications regarding a corporate employee's own conduct in the scope of his employment.

An update on the Employment Code of Practice (Disciplinary and Grievance Procedures) Order 2009, which brings the new Acas Code of Practice on Disciplinary and Grievance Procedures into effect on 6 April 2009.

An updated Whistleblower Investigations Manual has been issued by the Occupational Safety and Health Administration (OSHA). The new manual includes updated guidance for OSHA's handling of retaliation complaints under the whistleblower provisions of 21 statutes.

The EAT held in Patel v Clemence Hoar Cummings that the tribunal had erred in holding that the transitional provisions meant that it was possible for section 98A(2) of the Employment RIghts Act 1996 to apply in this case, but not section 98A(1). The EAT confirmed that the two sections were "inexorably linked" and must have come into effect together.

A Checklist of the steps to take when implementing an independent, neutral internal resolution program for handling employee disputes and workplace conflicts at a company. A peer review panel (PRP) or peer advisory board can help a company constructively manage and promptly resolve employee grievances.

In Reynolds v. Dept. of the Army, the US Court of Appeals for the Third Circuit held that a performance improvement plan, standing alone, is not an adverse employment action under the Age Discrimination in Employment Act.  The Third Circuit is now in accord with the Seventh, Eighth and Tenth Circuits on this issue. 

In Pinkus v Crime Reduction Initiative the EAT overturned the employment tribunal's finding that it did not have jurisdiction to hear Ms Pinkus's unfair constructive dismissal claim. Ms Pinkus's employment had terminated on 14 April 2005, she raised a grievance by letter dated 17 June 2005 and her ET1 was received by the tribunal on 3 October 2005. The tribunal had incorrectly held that Ms Pinkus's grievance was that Crime Reduction Initiative was contemplating dismissing her and, in consequence, had incorrectly concluded that the statutory grievance procedures did not apply to her case. The EAT held that the statutory grievance procedures did apply and the time for submitting her ET1 had been extended by a further three months by Regulation 15 of the Employment Act 2002 (Dispute Resolution) Regulations 2004. Accordingly, Ms Pinkus's ET1 had been submitted in time and her claim was remitted to the tribunal for a merits hearing.

The EAT found that a solicitor's letter before action had not raised an appeal against dismissal. Read more.

The EAT held that where an employee on a fixed term contract is dismissed prior to the expiry of the fixed-term, but subsequently overturns the dismissal on appeal, the appeal does no more than reinstate the original fixed-term contract. Read more.

This note provides an analysis of common frauds and a high-level guide to conducting an internal investigation, covering key issues such as: How to handle an internal investigation. Dealing with internal communication issues. Briefing external parties (for example, regulators).

The Employment Appeal Tribunal has allowed a claim to be admitted despite the claim form's failure to contain, expressly, the required information.

In Epstein v Royal Borough of Windsor and Maidenhead UKEAT/0250/07 the EAT confirmed that disparate treatment of employees in similar situations involving misconduct will only be relevant in limited circumstances. This case involved two lifeguards of a pool who were on duty while an incident occurred involving a swimmer. Following a disciplinary procedure, one lifeguard was dismissed but no sanction was imposed on the other one. The EAT held that the issue of disparity of treatment between employees was not relevant as long as the employer reached a decision which fell within the band of reasonable responses, which the employer had.

Under the Employment Act 2002 (Dispute Resolution) Regulation 2004, the time limit for bringing a tribunal claim is extended by three months where an employee invokes the statutory grievance procedure. The EAT in Singh t/a Rainbow International v Taylor confirmed that the three month time extension runs from the day after the day on which the original time limit for submitting the tribunal claim expires.

Guidelines for supervisors when listening and responding to employee concerns about workplace problems. This Standard Document has integrated notes with important explanatory and drafting tips.  

In Premier Foods PLC v Garner the employer had a dismissal and disciplinary procedure which allowed it to increase (or reduce) the sanction in the event of an appeal by an employee against a disciplinary decision. In this case, an employee appealed against a final written warning but the employer increased the sanction to summary dismissal on appeal. The EAT agreed with the tribunal that the whole disciplinary procedure could not be looked at as one continuous process and the employer should have started the procedure again when the new evidence came to light which it took into account in increasing the sanction. Perhaps a distinguishing fact is that the disciplinary and dismissal procedure permitted the employer to increase a disciplinary sanction to a more harsh one in the event of the employee appealing against the original decision.

A legal update on the revised draft Code of Practice on Disciplinary and Grievance Procedures published by Acas in November 2008.

An update on the High Court decision in R (on the application of G) v The Governors of X School and another [2009] EWHC 504.

The US Court of Appeals for the First Circuit ruled that the whistleblower protection provision in Section 806 of the Sarbanes-Oxley Act of 2002 (SOX) does not protect employees of private contractors or subcontractors to public companies.

The EAT held in Scott-Davies v Redgate Medical Services that employees do not have a free-standing right to bring proceedings for breach of the statutory dispute resolution procedures where there is no underlying statutory claim. It also held that the procedures do not apply to the right to a statement of terms under section 1 of the Employment Rights Act 1996.

In Leshinsky v. Telvent GIT, S.A., the US District Court for the Southern District of New York held that a plaintiff employee made out a prima facie case of retaliation against a whistleblower under Section 806 of the Sarbanes-Oxley Act of 2002 (SOX) when he was terminated after reporting a suspected violation to his supervisor. In so holding, the court clarified the definition of protected activity under the whistleblowing provision.

On August 12, 2011, the SEC's whistleblower rules became effective and the SEC issued new Forms TCR and WB-APP. 

In Ward v University of Essex UKEAT/0391/07 the EAT held that a letter raising several grievances about an employer's conduct, which also contained an offer to settle with the employer, could amount to a step one statement of grievance under the statutory grievance procedure. The EAT held that as the essential characteristic of a grievance letter is that the employer should be put on notice of what the employee is complaining about and the employer in this case could be in no doubt as to the nature of the dispute, the letter could stand as a valid grievance. The EAT relied on Palihakkara v British Telecommunications Plc UKEAT/0185/06 as authority for the proposition that, once a compromise agreement is void, the underlying grievance becomes live.

On 1 September 2010, the High Court granted Sharon Shoesmith permission to appeal in her judicial review action against the London Borough of Haringey and the then Secretary of State for Children, Schools and Families.

The Court of Appeal in R (Shoesmith) v Ofsted and others [2011] EWCA Civ 642, has allowed Sharon Shoesmith's appeals against the Secretary of State and Haringey London Borough Council concerning her dismissal as Director of Children's Services at Haringey.

Hi. We would welcome any guidance you could provide on the following: Concerns have been raised about an employee who suffers from bipolar disorder. (We are aware that there are potential disability discrimination issues but leave that to one side.) The employee was suspended whilst the concerns were investigated. Whilst he was off work he also got himself signed off but he now says that he's fit to return to work. However, he has now raised a complaint, (in somewhat general and vague terms) of bullying and harassment against his Line Manager who, coincidentally, will be the person who would ordinarily conduct a disciplinary hearing. Have you any thoughts as to whether the disciplinary matter or the grievance should be dealt with first? Our concern is that whichever is dealt with first there is potential for the employee to complain that he has not been treated fairly.

When an employee is dismissed for gross misconduct, is the employer able to tell other members of staff that the employee was dismissed for gross misconduct and what the gross misconduct was, or should they limit the information just to the fact of the dismissal?

If an employee has resigned and complained in his resignation letter about unfair treatment, is it still best practice to treat the resignation letter as a grievance or clarify whether the employee wishes to raise a grievance. Is there anything similar to the old modified procedure that can be used for ex-employees or is it best to follow the normal company grievance procedure?

The EAT held that an employee had been unfairly dismissed although the employer had complied with the standard dismissal and disciplinary procedure (SDDP). The EAT also considered the circumstances in which new or altered disciplinary allegations might trigger step 1 of the SDDP again. Unfair dismissal: when do new allegations trigger SDDP afresh?

Under the Employment Act 2002 (Dispute Resolution) Regulation 2004, the time limit for bringing a tribunal claim is extended by three months where an employee invokes the statutory grievance procedure. Read more.

The EAT in Skiggs v South West Trains Ltd upheld a tribunal's finding that a meeting between a manager and an employee, during which the manager inquired into another employee's grievance, was not a disciplinary hearing to which the employee had a right to be accompanied under section 10 of ERelA 1999, despite the fact that the matters discussed could lead to later disciplinary proceedings. It also held that a tribunal can award compensation to a union official for being deprived of the right to time off work for union duties pursuant to section 168 of TULRCA, even though no actual financial or other special losses have been proved.

In Smith v Michelin Tyre PLC ETS/100726/07 the tribunal upheld a dismissal for gross misconduct where the employee's misconduct was a one-off breach of a no-smoking policy. The employee worked at one of the employer's factories using highly flammable materials. The tribunal held that the personal circumstances of the employee, who had been employed for 12 years, had to be weighed against the importance of the employer's no-smoking policy in preserving its business, property and the lives of its other staff. In this case the existence of a legislative ban on smoking in the workplace (in Scotland) did not significantly add to the employee's breach, as the employer had a longstanding policy of banning smoking in the workplace.

Social media guidelines for a public company for both personal social media use and social media use as an authorized company spokesperson. These guidelines incorporate social media best practices under US securities and disclosure laws and regulations. This Standard Document has integrated notes with important explanations and drafting tips, including discussion of the impact of National Labor Relations Board (NLRB) review of social media policies. 

The massive growth in popularity of social media is creating issues, as well as opportunities, in the workplace. Employers will have a range of attitudes to the strategic importance of social media to their culture and business and, therefore, a corresponding range of responses: some will ban it, others will positively encourage it.  

In Lipscombe v Forestry Commission, the EAT held that it was sufficient for a resignation letter to make a passing reference to an employee's past grievance in order to comply with step one of the statutory grievance procedure under the Employment Act 2002. The EAT also held that where claims are brought by litigants in person, tribunals ought to look beyond the claim form to any other evidence before it in order to satisfy itself of what the claimant's case actually is.

The US Court of Appeals for the Second Circuit recently issued a decision in NLRB v. Starbucks Corp., ruling that Starbucks could prohibit its employees from wearing more than one pro-unionization button on their work clothes.  The Second Circuit reversed the holding of the National Labor Relations Board (NLRB) that Starbucks's policy was an unfair labor practice. 

In Van Dieren v G & C Edwards & Van Dieren-Hulsman the EAT held that a tribunal had confused the requirements of the SDDP with the SGP, resulting in the refusal of jurisdiction to hear a claim for unfair dismissal. On the facts of the case, there was a possibility that the claimant had reasonable grounds for not attending an appeal hearing, such as would entitle him to benefit from an extension of the time limit for submitting his claim for unfair dismissal.

In South Kent College v Mr J Hall UKEAT/0087/07/LA the EAT held that a tribunal had erred in holding that it could hear a claim for constructive unfair dismissal where an employee had confirmed in their ET1 that they had not previously raised a grievance in accordance with section 32(6) of the Employment Act 2002. The EAT also held that the statutory grievance procedure did apply to the employee's grievance concerning the first stage of a capability procedure, as it could not result in his dismissal, and regulation 6(5) was not therefore engaged. The EAT reluctantly held therefore that the tribunal's finding of unfair dismissal could not stand. The EAT commented that the grievance in a constructive dismissal case will concern the conduct which is said to be repudiatory and caused the employee to resign. It is not about the dismissal itself - the acceptance of the repudiation - since that is the result of the employee's own action.

In Lawrence v HM Prison Service the EAT (Elias P) has resolved an issue arising under the statutory dispute resolution procedures. The issue was whether an employee must raise a grievance (by lodging a Step 1 grievance letter and waiting 28 days) before the tribunal was entitled to hear the claim that the dismissal was unfair because of disability discrimination. The answer turns on the construction of regulation 6(5) of the Employment Act 2002 (Dispute Resolution) Regulations 2004. This provides that the grievance procedures do not apply where the employer has dismissed or is contemplating dismissal. The EAT held that, where it is argued that the dismissal was in breach of disability discrimination, it was likely that this would be aired as part of the dismissal procedures and the employee was not required to raise a grievance before the tribunal had jurisdiction to hear the claim.

In Kennedy Scott Limited v Francis the EAT upheld a tribunal chairman's decision that a note made by an employee's manager during a meeting and which contained "various details of complaints... which could, at least in places, reasonably be expected to raise with any employer reading them, concerns about allegations of sex and race discrimination" was a written statement of grievance under step one of the standard grievance procedure. Whether step one has been complied with will always depend on the facts of the case. However, the focus is on substance, not technicality. Employers should know where they stand but, in providing employers with that knowledge, the threshold to be crossed by employees should not be set high, and should not place in their way unduly legalistic obstacles. Step one does not require the employee to physically write the statement that is submitted to their employer.

In Alitalia Airport SPA v Akrif and others UKEAT/0546/07 the EAT considered the effect of regulation 9 of the Employment Act 2002 (Dispute Resolution) Regulations 2004. Regulation 9 exempts employees who are identified in a written grievance submitted by appropriate representatives from the requirement in section 32 of the Employment Act 2002 to submit their own written grievance. The EAT ruled that a tribunal had erred when it held that regulation 9 also exempted such employees from the requirement to wait for 28 days before presenting a claim to a tribunal. The EAT also held that union representatives who lodged a collective grievance could subsequently add further individuals to it. In circumstances where union members served questionnaires prepared by their union which demonstrated that they shared the grievance previously lodged by their union representatives, it could be implied that the union representatives had lodged the original grievance on their behalf (notwithstanding that they were not originally identified in it).

In Arnold Clark Automobiles v (1) Stewart and (2) Barnetts Motor Group Ltd the EAT upheld the tribunal's decision that a letter before action written by an employee's solicitor qualified as a statement of grievance for the purposes of the statutory grievance procedures. The EAT held that there was no requirement that a statement of grievance must be non-confrontational, without threats of legal action or mention that it is a grievance. It also made no difference that the letter was marked "without prejudice" as the subsequent claim brought by the employee related to the subject matter of the grievance.

In Shergold v Fieldway Medical Centre the EAT overturned a tribunal's decision, and held that a claimant who submitted a resignation letter detailing a number of complaints about her working arrangements had submitted a valid grievance in compliance with section 32 and Schedule 2 of the EA 2002. The EAT held that the requirements for a step one letter under the standard grievance procedure are minimal and that all an employee needs to do is set out their complaint in writing.

In Martin v Class Security Installations Ltd, the EAT held that a letter from an employee giving general reasons for his immediate resignation was sufficient to raise a grievance for the purposes of the statutory grievance procedures under the Employment Act 2002. The EAT also held that a separate letter from the employee's solicitor to the employer, indicating that the employee would be formulating a grievance (but had not yet done so), was sufficient to constitute raising a grievance.

In Deadman v Bristol City Council [2007] EWCA Civ 822 the Court of Appeal has provided further guidance on the scope of stress at work claims in the context of employment procedures such as disciplinary procedures. In this case the employee's stress arose from the employer's manner of conducting an investigation and informing him of a renewed investigation by leaving a letter on his desk. The Court of Appeal upheld the Council's appeal and overturned the High Court's decision that this conduct of the employer amounted to breaches of the contract of employment which caused the employee's illness. The Court of Appeal held that there was no contractual term to act sensitively and the fact that the employee would suffer psychiatric illness as he did was not reasonably foreseeable.

The EAT held that significant delays during an investigation into an employee's conduct and a failure to interview witnesses who could support his case did not render the employer's behaviour unreasonable. His claim for unfair dismissal therefore failed. Read more.

In Prakash v Wolverhampton City Council the EAT held that where an employee on a fixed term contract is dismissed prior to the expiry of the fixed-term, but subsequently overturns the dismissal on appeal, the appeal does no more than reinstate the original fixed-term contract. If the appeal takes place after the expiration of the original fixed term, the successful appeal does not extend the fixed term contract beyond the date when it would expire according to its terms. The EAT also held that under section 111(2) of ERA 1996 a claim could be "presented" as well by amendment as by the issue of a separate ET1.

The Court of Appeal has held that brokers who resigned from their employer with a view to joining a rival firm had not been constructively dismissed, and that those brokers who had withdrawn from forward contracts with the rival firm had not breached those contracts.

In Townsend v. Benjamin Enterprises, Inc., the US Court of Appeals for the Second Circuit decided two issues of first impression for the Second Circuit regarding Title VII of the Civil Rights Act of 1964 (Title VII). First, Title VII's anti-retaliation provision does not protect employees who participate in their employers' internal investigation of discrimination. Second, employers cannot assert the Faragher-Ellerth defense to hostile work environment claims when the alleged discrimination involves a proxy or alter ego of the employer.  

We would like to hear from you about any interesting practical points on disciplinary or grievance procedures under the Acas code.

The employment tribunal in Noskiw v Royal Mail Group plc dismissed a disability discrimination claim because the employee did not comply with the statutory grievance procedures prior to presenting his claim.

The Nottingham employment tribunal's decision in Cummings v Siemens Communications Ltd ET/3500013/10.

In London Borough of Hounslow v Klusova the EAT considered the approach that should be adopted by a tribunal when an employee is dismissed because continued employment would contravene a statutory restriction under section 98(2)(d). In particular, it noted that the statutory dismissal and disciplinary procedures do not apply in these circumstances. Where the employer genuinely believes that section 98(2)(d) applies, but is subsequently found to be wrong, it could argue that the dismissal was for some other substantial reason (SOSR). However, as the DDPs apply if the dismissal is for SOSR, an employer that thinks section 98(2)(d) applies should follow the relevant DDP unless it is absolutely certain of its facts, or risk the dismissal being for SOSR and automatically unfair.

The Court of Appeal's decision in Orr v Milton Keynes Council [2011] EWCA Civ 62.

In First West Yorkshire Limited t/a First Leeds v Haigh UKEAT/0246/07 the EAT held that the reasonable employer should give proper consideration to an ill-health retirement scheme before it dismisses an employee for long-term sickness. In this case, the question of whether the employee's condition was permanent (and thereby fulfilled the necessary requirement for an ill health pension) had not been answered before the employee was dismissed. The tribunal had been entitled to find that the employer should have taken advice on this question before deciding whether to dismiss. Given the employer had wished to avoid the possible costs of funding an enhanced ill-health retirement pension, section 98A(2) of the Employment Rights Act 1996 (which reverses the Polkey rule in cases of procedural default) did not apply.

The Employment Appeal Tribunal has held that, when deciding whether to dismiss an employee for gross misconduct, an employer can take account of a previous similar incident for which the employee had been given no formal warning.

In Archer v Department for Constitutional Affairs an employee was dismissed after being absent from her post for over nine years on a career break. Her employer followed no procedure at all, disciplinary or otherwise. The EAT found, upholding Kelly-Madden v Manor Surgery UKEAT/0105/06/DM, 19 October 2006 and Software 2000 v Andrews UKEAT/0533/06, 26 January 2007, that under section 98A(2) of ERA 1996 the tribunal was entitled to find on the evidence before it that a third party (in this case the Lord Chancellor) would also have decided to dismiss the employee if it had followed a procedure.

In Marks & Spencer plc v Williams-Ryan, the Court of Appeal decided that it had not been reasonably practicable for an employee to present her unfair dismissal claim in time, since she reasonably believed she had to follow an internal appeal before bringing a claim.

In Silman v ICTS (UK) Limited the EAT held that an employee had been unfairly dismissed although the employer had complied with the standard dismissal and disciplinary procedure (SDDP). The EAT also considered the circumstances in which new or altered disciplinary allegations might trigger step 1 of the SDDP again.

In Davies v Sandwell Metropolitan Borough Council UKEAT/0416/10 the EAT considered the effect of a tribunal's failure to take the circumstances of a final warning into account when determining the fairness of a subsequent dismissal.  Note (28 February 2013): This decision was appealed to the Court of Appeal (see Legal update, Tribunal not required to look behind previously issued final warning).

In Venniri v Autodex Limited UKEAT/0436/07 the EAT held that section 98A(1) of the Employment Rights Act 1996 was part of "the essential fabric of unfair dismissal law". Accordingly, unless the matter is expressly conceded, whenever tribunals consider whether a dismissal is fair they should consider the issues raised by section 98A(1) and, in particular: Whether there is an applicable procedure. Whether there has been "non-completion" of that procedure. Whether that non-completion is wholly or mainly attributable to failure by the employer to comply with its requirements. The EAT held that, in this case, the tribunal's decision had not identified compliance with the DDP as an issue and had made no findings about compliance with section 98A(1) of ERA 1996. As the employer admitted that it had failed to comply with the first step of the DDP, the EAT subsituted a finding of automatically unfair dismissal and remitted the case for a fresh tribunal to consider remedy.

Business Secretary Vince Cable has made further announcements on the government's employment law reform programme, including the publication of two new consultation documents.

In Ward v University of Essex UKEAT/0391/07 the EAT held that a letter raising several grievances about an employer's conduct, which also contained an offer to settle with the employer, could amount to a step one statement of grievance under the statutory grievance procedure. The EAT held that as the essential characteristic of a grievance letter is that the employer should be put on notice of what the employee is complaining about and the employer in this case could be in no doubt as to the nature of the dispute, the letter could stand as a valid grievance. The EAT relied on Palihakkara v British Telecommunications Plc UKEAT/0185/06 as authority for the proposition that, once a compromise agreement is void, the underlying grievance becomes live.

An employer received a complaint from a member of the public about the behaviour of one of its employees during the course of his employment. The employee says that it was not his fault. It is essentially one word against the other. The employer suspects that the employee is at fault and would like to dismiss. My question is: what is a reasonable investigation for the employer to go through to establish a reasonable belief that he is at fault, in order that he can dismiss him on this basis?

Dear Sirs, I have a question regarding representation by a union rep or colleague at an investigatory meeting. What if a union rep is unavailable, and that the Claimant employees are unwilling to attend as witnesses? In this case, the allegation is theft of an expensive piece of equipment. Clearly, no one wants to be involved as they are all under suspicion. My client was dismissed even though the evidence is not clear. His colleagues refused to attend and his union rep was sick. No replacement was made available for the first meeting but was for all future meetings. By that time the damage was done. Should the employer not compel them to attend? Would the argument be that the reasonable employer would have told them they had to attend?

If an employer has a right to suspend on disciplinary grounds on full pay, what does "full pay" constitute in the absence of any definition in the contract or disciplinary procedure? The employee earns approximately 20k basic salary pa and 80k commission pa, and is likely to be suspended for 3 to 5 weeks for good reason.

A summary of the key employment legislative developments expected to occur during 2008.

When misconduct by an employee has come to light almost a year after the event, are there any limitations on sanctions we can impose?

My question is, if the employer has taken reasonable steps to ensure the safety and wellbeing of its employees (in accordance with statute and the common law of tort) then will the employer be held to be vicariously liable for spontaneous, irrational and violent reactions to instructions?

In your ET3 precedent for redundancy payments you put in a provision which states that the amount of the payment can be reduced for a failure to follow the ACAS code. The ACAS code does not apply to redundancy dismissals so I am not clear why a Tribunal can reduce compensation for a redundancy payment. Please could you clarify what the position is? I have a claim for a redundancy payment and the employee failed to raise a grievance beforehand so I need to know whether I can include in my response a request for the Tribunal to reduce the compensation for failure to follow the ACAS code. Many thanks

In William Hicks & Partners v Nadal the EAT upheld a tribunal's finding that it had been outside the band of reasonable responses for an employer to decide, contrary to medical advice, that an employee was fit to attend a disciplinary hearing, and to hold the hearing and dismiss her in her absence. However, the tribunal had wrongly decided that no Polkey reduction could be considered in the circumstances.The EAT also made a costs award against the respondent because of the unnecessary volume of documentation produced at the appeal.

Whilst it is generally advisable for employees accused of misconduct to be given copies of witness statements during the disciplinary interview, a failure to do so does not necessarily render a dismissal unfair. The key requirement is that the employee should be made fully aware of the allegations against him so that he has a fair opportunity to give an explanation.

In Clyde Valley Housing Association Ltd v MacAulay UKEATS/0045/07 the EAT overturned a tribunal's decision that the employee had complied with step one of the modified grievance procedure, on the grounds that she had not set out the "basis" of the grievance. In the EAT's view, the employee's "generalised complaint" (that she had been subjected to degrading and humiliating treatment such as to destroyed trust and confidence) was insufficient. While her letter described the character of the alleged conduct, it failed to set out the evidential basis for her complaint, in other words, the acts, conduct and events of which she was complaining: "who, what, where, when and why?" This case highlights the fact that the requirements under step one of the modified grievance procedure are much more stringent than those under step one of the standard procedure, making it much more likely that a claim will be inadmissible. Potential claimants should therefore be extremely wary of agreeing to use the modified grievance procedure.

The EAT in YMCA Training v Stewart provided guidance on the requirements of the statutory dismissal and disciplinary procedure (SDDP) and the operation of section 98A(2) of the Employment Rights Act 1996 (the "Polkey reversal"). Previous EAT decisions in Alexander v Bridgen Enterprises Ltd and Kelly-Madden v Manor Surgery on the scope of "a procedure" in section 98A(2) were followed. Despite identified shortcomings, the procedure adopted by the employer met the requirements of the SDDP and the employee was therefore not "automatically" unfairly dismissed. Furthermore, given the tribunal's finding that, had the employer's procedure not been flawed, it was still more likely than not that the employee would have been dismissed, neither was the employer liable for "ordinary" unfair dismissal.