Discipline, Internal Investigations and Grievances

The Employment Appeal Tribunal has held that a solicitor's letter before action can amount to a written statement of grievance for the purposes of the Employment Act 2002.

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 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.

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

A checklist of tribunal claims indicating whether they are covered by the regime under section 207A of, and Schedule A2 to, the Trade Union and Labour Relations (Consolidation) Act 1992 (as amended by the Employment Act 2008), which gives tribunals the power to increase or reduce an employee's compensation by up to 25% if either party has unreasonably failed to comply with a relevant code of practice.

My client has to decide whether or not to dismiss a senior employee for gross misconduct. The dismissal could eventually lead to the end of the employee's career, as it could lead to adverse findings from the relevant regulatory body. The case doesn't hinge on documentary evidence, but it does hinge on who is telling the truth and who is lying. The accounts of the alleged misconduct are detailed and convincing for the most part but have been strongly denied by the employee during the investigation. My client wants to know if they can use a lie detector test on both the employee and the witness - also an employee. Needless to say, there's no contractual right permitting them to do so. If they can do this, what weight could they put on the results in coming to a decision as to an appropriate penalty? What view would an employment tribunal be likely to take on the use of the lie detector test? Thank you.

Is there any guidance or case law dealing with suspensions and the information that can be communicated to colleagues and others about an employee's suspension (e.g. can an announcement be made identifying that the individual has been suspended or should this be more generic i.e. that they are absent/taking leave)? Thank you

I have a client who is suspended from work. Prior to her suspension she had annual leave booked for a holiday. My client still wishes to go on holiday but does not want to take this as annual leave anymore as she is suspended on full pay. When she requested this and told her employer she would be available on her mobile telephone, they refused and said she must take it as holiday. Can they do this? Thank you in advance!

In Canary Wharf Management Ltd v Edebi, 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.

Re sexual harassment - I'm advising an individual who has been wrongly accused - whilst there is a duty of confidentiality to both parties the employer has made a public announcement that the employee has been suspended for alleged sexual harassment and has called all female employees into a one to one meeting to ask whether they have been sexually harassed by the employee - which they have all denied (save the complainant). This seems patently unfair to the employee - are there any cases on whether the employer can solicit evidence in this way?

The EAT held that the time limit for a claim for race discrimination arising from a decision not to promote ran from the date of the decision itself, and not the date on which the decision was communicated to the employee. Read more.

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.

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 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 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 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 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.

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.

In Styles v London Borough of Southwark, 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.

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.

In Davies v Sandwell Metropolitan Borough Council [2013] EWCA Civ 135, the Court of Appeal reviewed the circumstances in which a tribunal should consider whether a final written warning, which an employer had taken into account when deciding whether to dismiss an employee, had been appropriately given. 

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.

In Taskforce (Finishing and Handling) Ltd v Love the EAT criticised a tribunal for applying the same standards of procedural fairness in a redundancy case as it would have done in a disciplinary dismissal case. The EAT also confirmed that the right to be accompanied under section 10 of the Employment Relations Act 1999 does not apply to redundancy hearings, and that a failure to inform an employee of the right to be accompanied therefore did not render the dismissal unfair. http://www.bailii.org/uk/cases/UKEAT/2005/0001_05_2005.html

In Mezey v South West London and St George's Mental Health NHS Trust the Court of Appeal refused the Trust leave to appeal against a High Court injunction to restrain its suspension of Ms Mezey, a consultant psychiatrist. While Ms Mezey had given a voluntary undertaking to abstain from her clinical work pending an internal disciplinary hearing, she disputed the contractual lawfulness of her suspension. Pending trial of that issue, Ms Mezey obtained an interim injunction from the High Court.The Trust argued that, although a court may restrain a dismissal, it was wrong in principle, at least pending trial, to restrain a suspension, since this was "a neutral act preserving the employment relationship" and was appropriate in view of the breakdown of trust and confidence in Ms Mezey's clinical judgment. Suspension was, in the Trust's view, qualitatively different from dismissal. The Court of Appeal rejected that argument, "at least in relation to the employment of a qualified professional in a function which is as much a vocation as a job. Suspension changes the status quo from work to no work, and it inevitably casts a shadow over the employee's competence. Of course this does not mean it cannot be done, but it is not a neutral act."The Court of Appeal concluded that there was no reason in principle why the court should not have the power to restrain a suspension if it is in breach of contract and damages would not be an adequate remedy. Mezey v South West London and S

The DTI has 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. The consultation follows on from the recommendations made in 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 Gibbons review is that the Government should repeal the statutory dispute resolution procedures introduced by the Employment Act 2002 (Dispute Resolution) Regulations 2004.

In Thorpe & another v Poat & another (the first EAT decision on the statutory grievance procedures), the EAT decided that the employee's intention in sending a letter of resignation was not relevant to whether it was a valid statement of grievance under schedule 2 of the Employment Act 2002. Furthermore, the fact that the letter had not been sent to the person identified in the employment contracts as being the person to whom grievances should be sent, did not affect whether the grievance was sent "to the employer" for the purposes of the statutory grievance procedures.

In Galaxy Showers Limited v Wilson 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. They also found that a grievance did not need to indicate any intention to pursue a grievance procedure with the employer and that, in the circumsatnces of the present case, offering an employee an appeal hearing (where he had complained of the holding of the initial disciplinary hearing and procedural defects such that there should be a fresh hearing) did not satisfy the employer's obligation under step 2 of the statutory grievance procedure.

In Mark Warner v Aspland the EAT upheld the tribunal's decision that a letter before action can amount to a grievance for the purposes of the Employment Act 2002 and the Employment Act 2002 (Dispute Resolution) Regulations 2004, even where it is written by the employee's solicitor rather than by the employee itself.

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 note examining the statutory grievance procedures under the Employment Act 2002 that applied before 6 April 2009 and the surrounding legal framework. The note includes step-by-step explanations of the standard and modified grievance procedures. It also aims to unravel the complex rules that applied on admissibility and time limits, and looks at how tribunals treated these rules in practice. IMPORTANT. The statutory dispute resolution procedures were repealed on 6 April 2009 in Great Britain. This note is now only relevant to cases in Northern Ireland and ongoing cases in Great Britain to which the transitional provisions apply (see below).

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.

The Employment Act 2002 (Amendment of Schedules 3, 4 and 5) Order 2007 has been published and will come into force on 6 April 2007. The Order introduces three new jurisdictions in relation to which the statutory dispute resolution procedures will apply: Detriment relating to employees of European Public Limited Liability Companies. Detriment in relation to Information and Consultation representatives and employees. Detriment relating to Occupational and Personal Pension Schemes Representatives. The Order contains transitional provisions so that the dismissal and disciplinary procedures only apply to the new jurisdictions where the employer first contemplated taking action after the Order comes into force. The grievance procedure only applies to the new jurisdictions where the grievance occurs after the Order comes into force unless the grievance is a continuing matter and the employee has raised it with their employer or has presented a complaint to the employment tribunal before 6 April 2007. For details of the original consultation in relation to these amendments, see Legal update, DTI consultation on proposed changes to the ambit of the dispute resolution procedures.

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 Scorah v Thomas (a case in which an employer summarily dismissed an employee without following the statutory dismissal and disciplinary procedures) the EAT held that the tribunal had erred in focusing uniquely on the issue of the employer's liability. It should have considered the employer's argument on the issue of compensation that a Polkey deduction was appropriate in the circumstances.

In Madhewoo v NHS Direct, 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.

In Smith v Network Rail Infrastructure Ltd the EAT held that one grievance letter was sufficient under the Employment Act 2002 to cover a continuing failure to make reasonable adjustments under the Disability Discrimination Act 1995. No further letter of grievance was necessary in order to give the tribunal jurisdiction to consider acts and omissions of the employer after the date of the initial grievance letter, where the complaint was "essentially the same". The EAT also held that the tribunal had erred in two further respects: firstly, the date on which the duty to make reasonable adjustments was triggered in a situation where it was clear, in view of the employee's disability, that he would never be able to return to his original job; secondly, whether that duty obliged the employer to give some further training to the employee even before a suitable vacancy had been identified.

In Smith v Network Rail Infrastructure Ltd the EAT held that one grievance letter was sufficient under the Employment Act 2002 to cover a continuing failure to make reasonable adjustments under the Disability Discrimination Act 1995. No further letter of grievance was necessary in order to give the tribunal jurisdiction to consider acts and omissions of the employer after the date of the initial grievance letter, where the complaint was "essentially the same". The EAT also held that the tribunal had erred in two further respects: firstly, the date on which the duty to make reasonable adjustments was triggered in a situation where it was clear, in view of the employee's disability, that he would never be able to return to his original job; secondly, whether that duty obliged the employer to give some further training to the employee even before a suitable vacancy had been identified.

In Sinclair v Wandsworth Council UKEAT/0145/07/DM the employee, who was an alcoholic, was dismissed for twice turning up drunk for work.The EAT upheld the tribunal's finding that the dismissal was unfair as the Council had not given the employee a copy of its alcohol policy, which set out the circumstances in which disciplinary proceedings would be suspended pending treatment for alcoholism, and had failed to make it clear to the employee what steps he needed to take to avoid dismissal. However, the EAT held that the tribunal had erred in its approach to compensation when it assessed the employee's reduction for contributory fault at only 25%. The tribunal had wrongly taken the view that, since alcoholism was an illness, the employee's drunkenness at work could not be taken into account as contributory conduct.

The Employment Appeal Tribunal has held that an employee’s length of service is irrelevant when considering the reasonableness of an employer’s investigation into sickness absence.

Hi, We have an employee who was signed off for a short period of time with stress. When he returned he was invited to attend a disciplinary hearing for poor performance and some quite negative feedback from a client. We are concerned that putting him through the process may be detrimental to his mental health - should we get a medical report to see if he is fit to go to the meeting? Thanks.

Where an agency worker makes a complaint about discriminatory behaviour of the end user client, should the grievance be handled by the agency (as her employer) rather than end user client (as the alleged perpetrator) - albeit that inevitably the end user client may actually conduct some if not all of the investigation in conjunction with the agency? The end user's grievance policy is stated only to apply to its own employees. Does it make a difference if the conduct complained of (1) relates to acts done while she was on assignment and (2) to a potential offer of permanent employment with the end user (communicated to her by the agency) being withdrawn after she raised concerns about discrimination.

Is there any specific ACAS guidance on when a disciplinary hearing can go ahead in the employees' absence, if they have been deemed medically unfit to attend? Does the employee have any right to insist that the hearing is postponed until they are fit to attend? Many thanks.

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. Read more.

A legal update on R (on the application of Shoesmith) v Ofsted & Others [2010] EWHC 852 (Admin).

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.

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 Royal Bank of Scotland v Bevan UKEAT/0440/07 the EAT noted that the purpose of regulation 15 of the Employment Act 2002 (Dispute Resolution) Regulations 2004 was to encourage parties not to start proceedings until internal procedures had been completed. Therefore, when an employer brought a dismissal or disciplinary procedure to an end on the day that the time limit for claiming unfair dismissal expired, a tribunal had been entitled to find that it had not been reasonably practicable for an employee to submit their unfair dismissal claim in time. The tribunal had also been entitled to find that that seven days after the expiry of the time limit was a reasonable time for the purposes of submitting the employee's unfair dismissal claim to the tribunal.

The Employment Appeal Tribunal has held that a redundancy consultation meeting is not a “disciplinary hearing” for the purpose of section 10 of the Employment Relations Act 1999.

In Kelly-Madden v Manor Surgery, the EAT held that the "reversal of Polkey" in section 98A(2) ERA, which applies where an employer has failed to "follow a procedure in respect of the dismissal of an employee", refers to breach of any fair procedure, not merely breach of the employer's own internal procedures. The EAT's earlier decision in Alexander v Brigden Enterprises Ltd was therefore preferable to the conflicting decision in Mason v Governing Body of Ward End Primary School.

The Law Society, the City of London Law Society and the Equality Commission for Northern Ireland have published their responses to Acas' consultation on its revised Code of Practice on discipline and grievance for handling workplace disputes (see Legal updates, Consultation on draft Acas Code of Practice on discipline and grievance launched and Draft Acas guide on discipline and grievances at work). The consultation closed on 25 July 2008 and Acas has proposed that the new Code is introduced at the same time as the current statutory dismissal and discipline procedures are repealed under the Employment Bill 2007-08, which is currently planned for April 2009. See: Law Society, Draft Acas Code of Practice on discipline and grievance Response to the consultation, 08 August 2008. City of London Law Society, Response to the Acas Consultation on a Draft Code of Practice on Discipline and Grievance, 30 July 2008. Equality Commission for Northern Ireland, Response to Acas consultation on draft Code of Practice on discipline and grievance, 24 July 2008.

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.

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.

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

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 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.

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

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.

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.

The EAT's decision in University of The Arts London v Rule UKEAT/0245/10.

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.

Amendments to Northern Irish employment law concerning sex discrimination, the default retirement age and the statutory dispute resolution procedures.

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.

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.

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.

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.

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.

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

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.

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.

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.

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.

An update on two new quick guides on the forthcoming Acas Code of Practice and the revised Standard document, Disciplinary procedure.

The Advisory Conciliation and Arbitration Service has drafted a new code of practice on disciplinary and grievance procedures to replace its 1977 code.

Can you point me in the direction of any case law that says disciplinary rules must be clear ie the employee must know what is right or wrong and what matters might trigger discipline.

The EAT held that the definition of a grievance in the Employment Act 2002 (Dispute Resolution) Regulations 2004 can apply to complaints by an employee about the way in which their original grievance had been handled by the employer. Read more.

In Mezey v South West London and St George's Mental Health NHS Trust the Court of Appeal refused the Trust leave to appeal against a High Court injunction to restrain its suspension of Ms Mezey, a consultant psychiatrist. While Ms Mezey had given a voluntary undertaking to abstain from her clinical work pending an internal disciplinary hearing, she disputed the contractual lawfulness of her suspension. Pending trial of that issue, Ms Mezey obtained an interim injunction from the High Court.The Trust argued that, although a court may restrain a dismissal, it was wrong in principle, at least pending trial, to restrain a suspension, since this was "a neutral act preserving the employment relationship" and was appropriate in view of the breakdown of trust and confidence in Ms Mezey's clinical judgment. Suspension was, in the Trust's view, qualitatively different from dismissal. The Court of Appeal rejected that argument, "at least in relation to the employment of a qualified professional in a function which is as much a vocation as a job. Suspension changes the status quo from work to no work, and it inevitably casts a shadow over the employee's competence. Of course this does not mean it cannot be done, but it is not a neutral act."The Court of Appeal concluded that there was no reason in principle why the court should not have the power to restrain a suspension if it is in breach of contract and damages would not be an adequate remedy.

In Metrobus v Cook the EAT held that, where an employer concedes that its dismissal of an employee is automatically unfair due to its failure to comply with the statutory dispute resolution procedures, a tribunal is under no duty to make findings in relation to the employee's additional "ordinary" unfair dismissal claim. A 40% uplift of compensation was justified by findings that the employer had blatantly failed to comply with the standard dismissal and disciplinary procedure. The EAT upheld findings that with the exception of the failure to undertake investigations and assessment, which did not accord with the decision in Tarbuck v Sainsbury's Supermarkets Limited, the employer had breached the duty to make reasonable adjustments.

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.

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.

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 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.

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).

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.

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. Read more.

A flow chart summarising the principles of unfair dismissal and adjustments that could be made to the employee's compensation under the Employment Act 2002. Important: the provisions of the Employment Act 2002 dealing with procedural fairness and compensation were replaced by a new regime under the Employment Act 2008 on 6 April 2009. See Checklist, Liability and compensation for unfair dismissal.

Letter for use in the rare circumstances in which an employee may be dismissed immediately without a hearing under the Modified Dismissal Procedure set out in the Employment (Northern Ireland) Order 2003. Wherever possible it is preferable to suspend the employee pending an investigation rather than dismissing immediately.

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

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

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.

Letter to be used as part of a disciplinary procedure.

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

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

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)

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.

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?

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  

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?

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).

This is the index to the Bloomsbury Professional book Brearley and Bloch: Employment Covenants and Confidential Information, 3rd Edition. Chapter 6 and the table of contents are also available free of charge as a sample of the book's contents.

Hi, any guidance on the following would be appreciated: A former employee has raised a formal grievance about the circumstances that led to her resigning from her employment. I am aware that if this ends up in the Tribunal either party may be penalised for not adhering properly to the relevant ACAS code, and I suspect that this is why the employee has raised the grievance. However, it is not clear to me whether the ACAS code should apply after the employment has been terminated. In these particular circumstances, I doubt much will be gained by holding a meeting. I would therefore like to carry out something more akin to the old modified grievance procedure. However, I don't want to risk being penalised under s.207A TULRCA if the employee does make a claim. Any advice would be appreciated.

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

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).

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.

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.

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.

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.

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

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.

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 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.

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

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.

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 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 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.

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 Camden and Islington Mental Health and Social Care Trust v Atkinson UKEAT/0058/07 the EAT held that the employer's failure to lift a suspension was the reason for the employee's resignation. In this case, the employee indicated to her employer in her resignation letter that she was retiring to look after her ill husband. However, the EAT found that although the letter from the employee indicating retirement was the vehicle for her resignation, the cause of the termination of her employment was in fact her continuing suspension, which was a fundamental breach of her contract. The EAT therefore found that the employee had been constructively unfairly dismissed.

In Bisset v Martins and Castlehill Housing Association Ltd the EAT held that an employee could not rely on the extension of time provisions contained in regulation 15 of the Employment Act 2002 (Dispute Resolution) Regulations 2004 to extend the time limit for her discrimination claim against a fellow employee. Employees could only benefit from these provisions if the statutory grievance procedures applied. The statutory grievance procedures were intended to encourage the resolution of disputes arising between employers and employees and so do not apply to disputes between employees.

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.

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 DTI website now contains information on the current projects relating to the Employment law simplication review. In addition to the Gibbons Review on dispute resolution, this involves developing the guidance and business tools available on www.businesslink.gov.uk, clarifying the guidance on the right to time off for public duties, reviewing the obligations on employment agencies to provide information in relation to short-term assignments, considering non-postal balloting by trade unions and the removal of the obligations to have a written agreement with those undertaking accredited training for the purposes of the national minimum wage.

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.

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.

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 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.

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

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.

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

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

In Metrobus v Cook the EAT held that, where an employer concedes that its dismissal of an employee is automatically unfair due to its failure to comply with the statutory dispute resolution procedures, a tribunal is under no duty to make findings in relation to the employee's additional "ordinary" unfair dismissal claim. A 40% uplift of compensation was justified by findings that the employer had blatantly failed to comply with the standard dismissal and disciplinary procedure. The EAT upheld findings that with the exception of the failure to undertake investigations and assessment, which did not accord with the decision in Tarbuck v Sainsbury's Supermarkets Limited, the employer had breached the duty to make reasonable adjustments.

In Thomson v Barnet Primary Care Trust UKEAT/0247/12, the EAT considered whether an employee who was summarily dismissed on capability grounds, and then reinstated, was constructively dismissed as a result of the imposition of a mandatory retraining programme.

In Buzolli v Food Partners Ltd [2013] UKEAT/0317/12 the EAT considered whether an employer's decision to dismiss was fair, despite the dismissal procedure not having complied fully with the Acas Code.

In Stuart v London City Airport UKEAT0273/12, the EAT considered whether a tribunal had erred in deciding that a reasonable investigation had been carried out in a case of alleged theft.

The DTI has issued a consultation paper on proposed amendments to the Employment Act 2002 in order to provide that the statutory dispute resolution procedures apply to three additional jurisdictions.

In Sinclair v Wandsworth Council UKEAT/0145/07/DM the employee, who was an alcoholic, was dismissed for twice turning up drunk for work. The EAT upheld the tribunal's finding that the dismissal was unfair as the Council had not given the employee a copy of its alcohol policy, which set out the circumstances in which disciplinary proceedings would be suspended pending treatment for alcoholism, and had failed to make it clear to the employee what steps he needed to take to avoid dismissal. However, the EAT held that the tribunal had erred in its approach to compensation when it assessed the reduction for contributory fault at only 25%. The tribunal had wrongly taken the view that, since alcoholism was an illness, the employee's drunkenness at work could not be taken into account as contributory conduct.

Acas has published its draft guide on discipline and grievances at work. The guide complements the Acas Code of Practice on discipline and grievances at work and gives detailed advice on the practical aspects of disciplinary and grievance issues.

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

An update on the Court of Appeal's decision in Kulkarni v Milton Keynes Hospital NHS Foundation Trust [2009] EWCA Civ 789.

I wanted to find case law on employees lying on reasons for not returning to work to see what reason I should put on a letter to invite for disciplinary meeting. The employee was supposed to return to work on 3rd January and pretended that she was stranded abroad. When confronted she admitted that she was lying.

An update on the Government's response to its consultation on secondary legislation that may be necessary as a result of the changes to dispute resolution set out in the Employment Act 2008.

In Harris v Towergate London Market Limited an employee failed to appeal her dismissal for redundancy under the company procedures. After her employment ended, on the incorrect advice of the trade union, she sent her employer a "grievance" challenging the dismissal. She made a claim to a tribunal for unfair dismissal, which was out of time. The EAT held that she had, in fact, presented her employer with an appeal against dismissal which fell within regulation 15 of the Employment Act 2002 (Dispute Resolution) Regulations 2004; because of the employer's follow-up, she had "reasonable grounds for believing ... that a dismissal ... procedure, whether statutory or otherwise, was being followed". Therefore, under regulation 15(2), the time for bringing a claim was extended. In Arnold Clark Automobiles Ltd v Glass, the EAT dealt with a similar issue. On the incorrect advice of a CAB adviser, in June 2006 Mr Glass sent his employers a "letter of grievance" concerning the decision to dismiss him in March 2006 . He had not lodged an appeal in accordance with the company's internal procedure. The EAT held that the tribunal had failed to ask the proper question, which was whether he had a reasonable belief that a dismissal or disciplinary procedure was being followed (whether statutory or otherwise) when the primary three-month time limit expired. The Dispute Resolution Regulations continue to cause issues in practice.

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

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

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 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 Virdi v Commissioner of Police of the Metropolis and another the EAT held that the time limit for a claim for race discrimination arising from a decision not to promote ran from the date of the decision itself, and not the date on which the decision was communicated to the employee.

An update on revised PLC Employment materials to reflect the provisions of the Employment Act 2008 and new Acas Code of Practice on Disciplinary and Grievance procedures.

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.

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.

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 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.

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 Department of Trade and Industry is consulting on the introduction of statutory disciplinary procedures and statutory grievance procedures.

A short-form procedure suitable for a small or medium-sized business to use in cases of misconduct or poor performance. It incorporates the essential elements of the longer Standard documents, Disciplinary procedure, Disciplinary rules and Capability procedure, and takes into account the Acas Code of Practice on Disciplinary and Grievance Procedures.

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.

This business briefing sets out how a business should respond if an employee raises a grievance. Please note that this business briefing is aimed at non-lawyers.

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.

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.

The High Court's decision in Daniels v British Broadcasting Corporation [2010] EWHC 3057 (QB).

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.

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.

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.

In March 2007, the DTI (now DBERR) launched a consultation which sought views on how to improve the way employment disputes are resolved (see Legal update, Success at work: Resolving disputes in the workplace). The consultation closed on 20 June 2007, and a number of organisations have now published their responses to the consultation process, including Acas, the CBI, EEF, Citizens Advice, the Advice Services Alliance (an umbrella organisation for independent advice networks) and the National Group on Homeworking.

Acas has issued for consultation a revised Code of Practice on discipline and grievance for handling workplace disputes in anticipation of the current statutory dismissal and discipline procedures being repealed under the Employment Bill. In contrast to those procedures, which were introduced in 2004, the revised draft Code is concise and principles-based. Acas has proposed that the new Code is introduced at the same time as the statutory procedures are repealed, which is currently planned for April 2009.

In GMB v Brown UKEAT/0621/06, the EAT held that it undermined trust and confidence to require an employee to discuss their grievance with the manager about whom they were making a complaint. It also considered if the loss flowed from the date of resignation or from the date of a breach which had occurred prior to the resignation and which was unconnected to the dismissal itself. It agreed with the employer that the loss flowing from the failure to work immediately following the resignation did not stem from the dismissal itself but was the consequence of conduct which preceded the dismissal. This resulted in a reduction to the employee's compensation.

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.

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

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).

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.

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?"

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.

This is a chapter from the Bloomsbury Professional book Brearley and Bloch: Employment Covenants and Confidential Information, 3rd Edition, which is a definitive guide to the conflicts that can arise when an employee seeks to compete with his or her employer. It examines the protection of employers' interests and the freedom of employees to exploit their general skill and knowledge. This edition includes new chapters on fiduciary duties, database rights and international issues and it examines permissible conduct for employees who are leaving in "team moves". Chapter 6, the table of contents 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 the Bloomsbury Professional book Brearley and Bloch: Employment Covenants and Confidential Information, 3rd Edition, which is a definitive guide to the conflicts that can arise when an employee seeks to compete with his or her employer. It examines the protection of employers' interests and the freedom of employees to exploit their general skill and knowledge. This edition includes new chapters on fiduciary duties, database rights and international issues and it examines permissible conduct for employees who are leaving in "team moves". Chapter 6, the table of contents 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 the Bloomsbury Professional book Brearley and Bloch: Employment Covenants and Confidential Information, 3rd Edition, which is a definitive guide to the conflicts that can arise when an employee seeks to compete with his or her employer. It examines the protection of employers' interests and the freedom of employees to exploit their general skill and knowledge. This edition includes new chapters on fiduciary duties, database rights and international issues and it examines permissible conduct for employees who are leaving in "team moves". Chapter 6, the table of contents 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 the Bloomsbury Professional book Brearley and Bloch: Employment Covenants and Confidential Information, 3rd Edition, which is a definitive guide to the conflicts that can arise when an employee seeks to compete with his or her employer. It examines the protection of employers' interests and the freedom of employees to exploit their general skill and knowledge. This edition includes new chapters on fiduciary duties, database rights and international issues and it examines permissible conduct for employees who are leaving in "team moves". Chapter 6, the table of contents 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 the Bloomsbury Professional book Brearley and Bloch: Employment Covenants and Confidential Information, 3rd Edition, which is a definitive guide to the conflicts that can arise when an employee seeks to compete with his or her employer. It examines the protection of employers' interests and the freedom of employees to exploit their general skill and knowledge. This edition includes new chapters on fiduciary duties, database rights and international issues and it examines permissible conduct for employees who are leaving in "team moves". Chapter 6, the table of contents 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 the Bloomsbury Professional book Brearley and Bloch: Employment Covenants and Confidential Information, 3rd Edition, which is a definitive guide to the conflicts that can arise when an employee seeks to compete with his or her employer. It examines the protection of employers' interests and the freedom of employees to exploit their general skill and knowledge. This edition includes new chapters on fiduciary duties, database rights and international issues and it examines permissible conduct for employees who are leaving in "team moves". Chapter 6, the table of contents 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 the Bloomsbury Professional book Brearley and Bloch: Employment Covenants and Confidential Information, 3rd Edition, which is a definitive guide to the conflicts that can arise when an employee seeks to compete with his or her employer. It examines the protection of employers' interests and the freedom of employees to exploit their general skill and knowledge. This edition includes new chapters on fiduciary duties, database rights and international issues and it examines permissible conduct for employees who are leaving in "team moves". Chapter 6, the table of contents 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 the Bloomsbury Professional book Brearley and Bloch: Employment Covenants and Confidential Information, 3rd Edition, which is a definitive guide to the conflicts that can arise when an employee seeks to compete with his or her employer. It examines the protection of employers' interests and the freedom of employees to exploit their general skill and knowledge. This edition includes new chapters on fiduciary duties, database rights and international issues and it examines permissible conduct for employees who are leaving in "team moves". Chapter 6, the table of contents 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 the Bloomsbury Professional book Brearley and Bloch: Employment Covenants and Confidential Information, 3rd Edition, which is a definitive guide to the conflicts that can arise when an employee seeks to compete with his or her employer. It examines the protection of employers' interests and the freedom of employees to exploit their general skill and knowledge. This edition includes new chapters on fiduciary duties, database rights and international issues and it examines permissible conduct for employees who are leaving in "team moves". Chapter 6, the table of contents 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 the Bloomsbury Professional book Brearley and Bloch: Employment Covenants and Confidential Information, 3rd Edition, which is a definitive guide to the conflicts that can arise when an employee seeks to compete with his or her employer. It examines the protection of employers' interests and the freedom of employees to exploit their general skill and knowledge. This edition includes new chapters on fiduciary duties, database rights and international issues and it examines permissible conduct for employees who are leaving in "team moves". Chapter 6, the table of contents 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.

A legal update on the EAT's decision in Samuel Smith Old Brewery (Tadcaster) v Marshall and another UKEAT/0488/09.

An update on cases of interest to employment lawyers for the week ending 7 November 2008.

A legal update on the Court of Appeal's decision in Salford Royal NHS Foundation Trust v Roldan [2010] EWCA Civ 522 and the EAT's decision in London Borough of Redbridge v Baynes UKEAT/0293/09.

The EAT has overturned a tribunal's decision that threatening conduct in the tribunal corridor attracted judicial proceedings immunity. The Court of Appeal has given guidance to the EAT on how to approach cases where the tribunal has incorrectly used the slip rule to amend its original judgment. The EAT has upheld a tribunal's decision that the modified grievance procedure applied in relation to an equal pay grievance and was not complied with as the basis for the grievance was not sufficiently identified.

An update on a case of interest to employment lawyers for the week ending 19 June 2009.

A procedure for managing capability and performance issues in the workplace, taking account of the Acas Code of Practice on Disciplinary and Grievance Procedures and other best practice advice from Acas. 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.

I re-call a case after Polkey which found that where no procedure had been followed at all, the employer could not make an argument for a polkey reduction in compensation given that there had been such a blatant disregard for the procedure. I am struggling to find reference to this case on plc and would be grateful if you could point me in the right direction. Many thanks

The ACAS Code of Practice is clear that in disciplinaries one person should investigate and then a different person should hold the hearing and make a decision. Does the same rule apply to grievances as the Code is silent. Is it acceptable for the same person to investigate and provide an outcome to the grievance or is it preferable to have separate individuals? Many thanks

Where a Claimant is conducting an employment tribunal in person and has exchanged a witness statement that contains offensive content, is it possible to use that statement to begin disciplinary action against them?

If an emloyer has sufficient evidence to dismiss for gross misconduct and has carried out the correct procedure, would it be construed as a weakness in the employer's defence if it offers the employee the chance to resign, receive a payment in lieu of notice subject to a compromise agreement. I have often seen this done, presumably in order to avoid a time consuming appeal process but wonder how the Tribunal would look at such an offer if it came to their attention. In the alternative, if an employee has long service and has, until the incident in question, been a good employee, would an employer be obliged to make such an offer rather than an employee having the stigma of gross misconduct attached to him? Many thanks, always interested to hear your views!

Can an organisation use the results from a mystery shopping exercise to initiate disciplinary proceedings? If the services have been recorded can the organisation use the recording as evidence?

I am advising a client on a gross misconduct dismissal. I know that there has been recent (the last year) case law re relying on old allegations, stale allegations, allegations of events in the past that may have been waived by the employer. However I can't find it by searching. Can you point me in the right direction please?

The company I am working for does not recognise a union. An employee has been invited to a disciplinary hearing and has requested that he is accompanied by a UNITE TU official as he is a member of UNITE. The company has responded by agreeing but insisting that the meeting is held off site as UNITE is not recognised. This does not feel in the spirit, can it be deemed to be discriminatory? Is there any legislation that is relevant here please? Many thanks.

Can I please clarify whether a termination of employment during a probationary period requires any of the dismissal steps to be followed? If the probation is 6 months and the employer gives 1 weeks' notice, is this permissible to call the employee into the office and terminate the position if it is not working out, or would it be advisable to explain why (such as non-performance) and allow the employee the chance to remedy their performance before termination whilst in the probationary period? Many thanks

I would be grateful for your advice on three issues: A disciplinary investigation was concluded in 2010 in respect of serious allegations of misconduct. Following a disciplinary hearing, the employee was given a final written warning. In recent months, new evidence has come to light to suggest that the employee had a greater involvement in the serious incident that led to the first set of disciplinary allegations. Is there anything preventing the employer from commencing a new investigation into the matter, based on the new evidence, against this individual? My concern is that the disciplinary allegations will be broadly similar and the employee has already received a disciplinary sanction. If the employee is dismissed as a result of this new disciplinary process (and let us assume that the employee had not lied during the initial investigation, which could potentially be a ground for a new disciplinary investigation), would this give him/her a good case for unfair dismissal? If rather than new evidence, the investigation would be looking into matters which may or may not have been available to the past investigator on reasonable enquiry, would this make a difference? Clearly, another issue in this matter is delay. Assuming that the new investigation takes place within good time of the new information becoming available, will the fact that the matters being investigated took place in 2010 render any resulting dismissal unfair? I look forward to hearin

In a case in which a grievance has been upheld against an employee and there will be ensuing disciplinary proceedings, is the employee entitled to see the written report of the investigation into the grievance?

Hello. With reference to the application of the ACAS code of practice and the potential uplift in compensation of up to 25% for non compliance, is it possible to claim a 25% uplift for failure to adhere to the code when dismissing an employee as well as a further 25% for failure to hear a formal grievance? If so and differential percentage uplifts are awarded, in what order would they be applied? Thanks

Can a grievance about pay (which could be sex discrimination) be treated as a protected disclosure?

I act for an employer who disciplined an employee on the grounds of poor performance and issued a final written warning. The employee has worked for the company for 18 months. The employee has appealed. He rejects the findings of the disciplinary hearings as subjective. However, the employee adds that he was diagnosed as HIV positive in Feb 12 and this may have unknowingly impacted on his performance. He is now asking the employer to take this into account and make reasonable adjustments. Questions: Is HIV Positive diagnosis a disability? Since the employee was disciplined prior to informing the employer about this, is there any obligation on the employer to take this now into account at the appeal hearing. If so, to what extent? Separately, if the employer chooses to terminate the contract now, aside from a straightforward unfair dismissal claim, could the employee argue that since he has now made the employer aware of his HIV positive diagnosis that he has been discriminated against and that this is the real reason for dismissal?

In Camden and Islington Mental Health and Social Care Trust UKEAT/0058/07 the EAT held that the employer's failure to lift a suspension was the reason for the employee's resignation. In this case, the employee indicated to her employer in her resignation letter that she was retiring to look after her ill husband. However, the EAT found that although the letter from the employee indicating retirement was the vehicle for her resignation, the cause of the termination of her employment was in fact her continuing suspension, which was a fundamental breach of her contract. The EAT therefore found that the employee had been constructively unfairly dismissed.

In Brock v Minerva Dental Limited the EAT allowed an application made outside the primary three month time limit to amend proceedings for actual unfair dismissal to include a claim for constructive unfair dismissal (despite the original actual dismissal claim having been struck out by the tribunal). On the facts of the case Mr Brock had raised a grievance and complied with the statutory grievance procedure. The time limit for tribunal proceedings had therefore been extended by a further three months under Regulation 15 of the Employment Act 2002 (Dispute Resolution) Regulations 2004 and the application to amend his tribunal claim had been made in time. Taking this into account as part of the balance of injustice and hardship between the parties as directed by Selkent Bus Company Limited v Moore [1996] ICR 836, the EAT found that the balance fell in Mr Brock's favour and overturned the tribunal's refusal to allow the amendment.

This Bloomsbury Professional book is a definitive guide to the conflicts that can arise when an employee seeks to compete with his or her employer. It examines the protection of employers' interests and the freedom of employees to exploit their general skill and knowledge. This edition includes new chapters on fiduciary duties, database rights and international issues and it examines permissible conduct for employees who are leaving in "team moves". Chapter 6 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.

Where an employee sues for damages on the grounds that his employer failed to follow a contractual disciplinary procedure, the measure of loss is assessed on the basis of lost earnings and benefits which the employee would have received had the procedure been followed.

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.

The EAT held that an employee could not rely on the extension of time provisions contained in regulation 15 of the Employment Act 2002 (Dispute Resolution) Regulations 2004 to extend the time limit for her discrimination claim against a fellow employee. Read more

An update on the various employment law-related Bills to be considered by Parliament.

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

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.

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.

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.

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?

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.

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 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.

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 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.

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.

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. 

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.

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.

A guide for managers and employers on bullying and harassment at work, published by Acas. It is for guidance only and has no legal force.

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.

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.

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