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February 2003 In this issue:
New Dismissal, Disciplinary and Grievance procedures
Stress only happens to wimps!
And what happens when employees cannot cope with changes at work
Coaching for excellence
Even if you employ just one person you must, by law, have a DD procedureThe Government is concerned about the lack of procedures being operated by small employers (fewer than 250 employees) who account for quite a high proportion of tribunal claims. The new statutory procedures for workplace dispute resolution will apply to ALL employers regardless of the number of employees. Dismissal & Disciplinary Procedures (DDP)These procedures must be set out in an employee’s written particulars of employment. Schedule 2 of the Act sets out two different procedures: ‘Standard’ and a much shorter ‘Modified’ procedure. The Act does not make it clear how an employer is suppose to choose which procedure to use. However, the Government’s intention is that the standard procedure will apply to most ‘minor’ cases and the modified procedure will apply to cases of extreme gross misconduct where an urgent response was required. Long gone are the days when an employer could summon an employee to a disciplinary hearing without notice (even a day’s notice is no longer enough) or dismiss without following a procedure which includes a right of appeal. Employers will need to review their existing procedure and may need new ones to meet the new minimum requirements. DDP - Standard | | Step 1 – Invitation to meeting Must be in writing, stating allegations. Step 2 – The meeting - There must be a meeting which takes place only after step 1
- Reasonable time has been given to prepare.
- Employee must take all reasonable steps to attend
- Decision to be given without reasonable delay.
Step 3 – The right to appeal - Employee should inform employer if they wish to appeal.
- Appeal should be to a more senior manager is at all possible.
Similar requirements apply as step 1. |
| DDP – Modified | | The employer may have dismissed the employee with a meeting: Step 1 – set out in writing - The alleged misconduct that led to dismissal
- Basis for the thinking at the time of the dismissal
- Employees right to appeal.
Step 2 – appeal As step 3 under Standard. This procedure is less than the ACAS Code of practice, however, tribunals are still required to regard it at hearings. We recommend that the standard procedure be followed regardless of how serious or obvious the gross misconduct |
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Statutory Grievance Procedure (GP)This procedure also as the ‘Standard’ and ‘Modified’ procedures. Government indications are that the modified GP should apply where the employee has already left employment and that an exchange of correspondence should be enough as a minimum requirement. Under the new procedure, employees will be required to have brought a formal grievance in writing with their employer before applying to a tribunal. This means that an employee cannot just reign and claim constructive dismissal at a tribunal if the employer was never made aware of their complaint. This is when the modified procedure comes into play. GP – Standards | | Step 1 – Statement of grievance from employee Step 2 – Meetings to discuss grievance Step 3 – Decision and appeal Decision must be in writing and employee given right of appeal to more senior manager if possible. |
| GP – Modified | | Under this procedure it is essentially a paper exercise and no meeting need to held. Appropriate when employee has already left his employment. Step 1 – Statement of grievance - Employee must set out in writing the grievance and the basis for it.
- Send it to the employer.
Step 2 – Response - Employer must respond within 28 days.
Tribunal should not accept claim until after 28 days have passed. |
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A number of points to conclude: - As the DDPs and GPs become part of every employee’s contract, any failure to follow procedure will be in breach of contract and therefore automatically unfair dismissal. This may also prevent an employer right to enforce clauses such as restrictive covenants.
- Tribunals will have the power to award additional compensation to the employee if the employer had not given the employee any written terms and conditions of employment.
- No employers will be exempt from this regulation even if they have just one employee.
- We are still waiting to see what the Government recommends with regards to the employees right bring a representative/companion at a disciplinary or grievance hearing.
Stress in the workplace is a very serious issue and it would be very interesting to find out how many employers share the view that employees are increasingly using it as an excuse to either do less work and/or skive. The Health and Safety Executive has defined stress in the workplace as "the adverse reaction that people have to excessive pressure or other types of demand placed upon them. It arises when they worry that they cannot cope". It is estimated that in the UK alone the number of working days lost through stress related illnesses has risen from 37 million in the 1980s to 230 million a year in the 1990s. Every day around quarter of a million people can’t face another day of stressful work, so is it any wonder that it is the second biggest reason for sick leave in the UK. Stress can also be a positive thing – many people need a certain amount of stress in order to motivate themselves and ensure that they perform at their best. However, too much stress over a long period can only have a negative impact. Find our what your duties are as an employer and read a case study Duty to provide a safe system of work This duty encompasses a requirement that the employer provides every employee with properly and adequately trained colleagues. A failure to do this will result in workloads being unevenly balanced, which could lead to over-worked employees suffering from stress. A heavy workload has been held not to be dangerous per se, but where the employee has previously complained of overwork and suffered mental illness as a result of stress, the court has held that future mental illness if the workload is not reduced is a reasonably foreseeable risk. If the situation is not remedied and the employee does suffer a further breakdown then an action for damages is likely to succeed. Duty to provide a reasonably suitable working environment The Employment Appeal Tribunal ("EAT") has implied a term into a contract of employment that "the employer will provide and monitor for its employees, so far as is reasonably practicable, a working environment which is reasonably suitable for the performance by them of their duties." Duty of mutual trust and confidence This is a fundamental term of the contract of employment. The term will be breached where the employee is, for example, subjected to bullying or harassment. Duty to support the employee The employer has a duty to take reasonable steps to support the employee, whether against colleagues or in simply carrying out their work. In many situations which cause an employee stress it may be the case that this is due to receiving an inadequate level of support from their employer. In such circumstances the employee may leave and claim constructively dismissal. Where the employer has breached a common law duty the employee will (in addition to any Tribunal claim as a result of constructive dismissal) be able to bring a claim for damages due to a breach of their contract of employment. However, the employee will have to prove that a reasonable employer should have been aware that stress related problems were a foreseeable result of that employer’s actions. Statutory protection In addition to the general principles of health and safety law which are set out in section 2 of the Health and Safety at Work (etc.) Act 1974, there is a great deal of specialist secondary legislation which impose more detailed obligations on employers. - Employers are obliged to carry out assessments of their workplaces to identify health and safety risks. Ideally these should include factors which may create a stressful working environment, such as lighting, ventilation, workloads and hours worked.
- Employers are also obliged to ensure that their employees are adequately trained. It may be helpful to include sessions on how to deal with workloads and other factors which can cause stress. Stress counselling is also widely available and can be an effective tool in combating high stress levels in a workforce.
- Health and Safety (Display Screen Equipment) Regulations 1992. These regulations are designed to combat Repetitive Strain Injury, a stress related illness which is predominantly caused by badly organised work stations or the employee being forced to carry out repetitive actions. Employers are required by the regulations to take various steps to prevent such injury occurring
- Working Time Regulations 1998 - These regulations limit the number of hours that an employee can work in a week, and provide for mandatory rest periods between working sessions. Although workers are able to contract out of these regulations, employers should consider the possible effect on stress levels in their workforce of routinely requiring employees to work hours in excess of those provided for in the regulations.
- Harassment - This is one of the most common causes of stress in the workplace. Where it is the result of sexual or racial harassment or harassment on the grounds of disability then the employer could be in breach of obligations under the Sex Discrimination Act 1975 the Race Relations Act 1976 or the Disability Discrimination Act 1995. The best method of preventing such liability is to have an effective harassment policy in place and to provide training to employees in how to prevent and deal with claims of harassment.
- Disability discrimination - Where stress causes "a physical or mental impairment which has a substantial and long term adverse effect on a person’s ability to carry out normal day to day activities" then the affected employee will be disabled for the purposes of the Disability Discrimination Act 1995. The employer must therefore not treat that employee less favourably on account of the disability. The employer is also under an obligation to make reasonable adjustments to his premises and/or to the employee’s workload in order to accommodate the employee’s disability.
Case Law Baker Refractories Ltd v Bishop: [2002] The Court of Appeal held that Mr Bishop’s illness was not foreseeable and that, even if it had been, there was nothing that the employers could have done to prevent it. Mr Bishop’s employer introduced new shift patterns which most employees welcomed and coped with. Mr Bishop, however, did not. He found it hard to adjust and complained to his manager that he wanted his old job back. The manager explained that there was nothing he could do: his old job was no longer available and he could not rearrange the work so as to give Mr Bishop what he wanted. He tried to reassure Mr Bishop that he was doing a good job and had nothing to worry about. Mr Bishop did worry and when he saw his GP he was advised to change his job (which he did not tell his employers). When he was absent from work on sick leave, he submitted two sick notes referring to ‘neuroasthenia’. He returned to work for two days, after which there was a holiday and then the usual four days off. He returned on 24 February and his breakdown took place the following day. The Court held that there was nothing unusual, excessive or unreasonable about the demands which were being placed upon Mr Bishop by his work. The sad fact was that he was unable to cope with the changes. Whilst his employers knew that he was unhappy and wanted to go back to the old ways, they were not told of the advice given to him by his doctor. The two sick notes were not in themselves such clear signs of a risk to his mental health that a reasonable employer should have realised that something should be done. Even if they had been, the Court held that there was nothing that the employer could reasonably be expected to do. The job that he wanted was no longer available and the work which was available could not be reorganised to suit one employee. The reality was that the GP’s advice was correct: the only solution would have been to dismiss him. The employer could not be in breach of duty for failing to dismiss an employee who wanted to continue and master the job despite the advice given to him by his own doctor.
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