Guide: Disciplinaries

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Guide: Time off and holidays

Time off & Holidays

Everyone has a minimum right to paid holiday. Basic entitlements include:

  • 28 days annual leave (this may include bank and public holidays) if you're working full-time (part-time workers are entitled to the same level of holiday pay pro-rata, ie 14 days' annual leave if you work 2.5 days a week)
  • holiday pay, building from the day you start work

You may also have the right to be paid for some holiday you haven't taken, if stated in your contract. And if your contract comes to an end or is terminated for any reason, you have the right to be paid for any holiday you have left.

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Race discrimination

What is race discrimination?


The Race Relations Act 1976 and its subsequent amendment make it unlawful to discriminate against a person, directly orindirectly,  areas including:-

  •     employment and training
  •     education
  •     the provision of goods and services, for example, financial matters,  entertainment and transport
  •     housing
  •     any of the activities carried out by public authorities, such as government departments, local authorities, the policeand prisons.

Legally, race discrimination can be 'direct' or 'indirect', or can take the form of harassment or victimisation.

 

What is direct discrimination?

It is direct race discrimination to treat a person less favourably on racial grounds than another person would be treated inthe same circumstances. As well as words or acts of refusal, direct discrimination includes words or acts of discouragement.

The test for establishing direct discrimination, laid down in R v Birmingham CC ex p EOC [1989] and confirmed in James v Eastleigh BC [1990] is:-

  • * was there an act of discrimination?
  • * but for the applicant's sex, disability or race, would he or she have treated differently (more favourably).


What is indirect discrimination?

It is indirect race discrimination to set conditions or requirements for a person to meet which may seem to apply to everyone, but may place people of a particular racial, ethnic or national group at an unfair disadvantage.

There may have been indirect discrimination if:-

  •     people of a particular racial, ethnic or national group are less likely to be able to meet it; and
  •      as a result, people who cannot meet it are placed at a disadvantage or would be placed at a disadvantage; and
  •      it cannot be justified by the person or institution setting it.

There may be indirect discrimination if members of one or more racial, ethnic or national group are less likely to meet itthan others. An example would be if an employer insists that candidates for a job should speak faultless English when this isclearly not needed for the type of work. Further examples are banning the wearing of headscarves or insisting on the wearingof skirts at work or school, or an employer insisting that a person has qualifications obtained only in the UK.

 

What is harassment?

Harassment occurs when someone is subjected to behaviour that has violated their dignity or damaged their envrionment because

of their race or ethnic origin.

A single act of a serious nature will support a claim of harassment. Even a single verbal comment, if sufficiently seriousmay amount to harassment (In Situ Cleaning v Heads [1995].

 

What is victimisation?

You will have suffered victimisation if you are treated less favourably because you have complained, brought proceedings orasserted your rights under race discrimination laws. This also includes a person who has assisted or supported you in doingthis, for example, by giving evidence as a witness in a case of race discrimination.


‘Racial grounds’ include:-

  •     colour
  •     race
  •     nationality
  •     ethnic or national origins.

 

What is meant by 'ethnic origins'?

Legal discrimination cases have made it clear whether certain groups of people can be counted as belonging to an ethnic group. For example, Jews, Romany gypsies, members of the Irish traveller community, and Sikhs were found to be ethnic groups.

Rastafarians were not found to be members of an ethnic group. However, it is illegal to discriminate against you if you are a Rastafarian, because of your religion.

The test for determining racial group within s3 of the RRA 1976 was provided in Mandla v Dowell Lee [1983]. In this case thewords 'ethnic origin' were held to mean a distinct and separate community by reason of various characteristics including:culture; language; history; descent; and any racial characteristics. 'National origins' are ascertained as identifiableelements, both historically and geographically, which reveal the existence of a nation.

It is not necessary for you to belong to one of these groups for discrimination to take place. Someone may discriminateagainst you because they believe you belong to a different racial group. There might also be transfered discrimination.


What is transfered discrimination?

Discrimination may take place when a person is treated less favourably becauxe of another person's race. For example Owens,who was white, was dismissed for failing to obey an order to exclude black people (Showboat Entertainment Centre Ltd v Owens [1984].


Public authorities have a legal duty to eliminate unlawful discrimination and to actively promote equality.

If you are taking action over race discrimination, you do not have to demonstrate that there was an intention to discriminateagainst you. It is only necessary to show that discrimination took place.

You do not have to demonstrate that racial grounds were the only reason for the discrimination you experienced. It is enoughto show that racial grounds played a substantial part in the discrimination.


Is all discrimination on grounds of race illegal?

No. The law on race discrimination says there are some situations where race discrimination is permitted.

Employment

If certain conditions or requirements in employment can be shown to be a ‘genuine occupational qualification’ they may not bediscriminatory. For example, it may be justified for the owner of a Chinese or a Greek restaurant to ask for a Chinese or aGreek waiter because the restaurant setting requires this. It is justifiable for a hostel for Asian women who have sufferedviolence to specify that it wants only Asian women workers on the grounds that the women would find it easier to relate toand communicate with people of the same racial group.

Race discrimination is not unlawful if the job involves working for a private household, working abroad for most of the timeor when, with regard to certain jobs, the Crown is the employer.
 

Goods, facilities and services

Clubs, associations and charities set up especially for people of a particular ethnic or national group are allowed to discriminate on the basis of nationality or ethnic or national origin but not on the grounds of colour.
 

Housing

Owner-occupiers who are selling or letting their property can lawfully discriminate on the grounds of race if they do notadvertise or use an estate agent. So can people who are renting out a ‘small premises’, if the landlord or a member of theirfamily have to share facilities with the tenants or prospective tenants.


If you are a Solidarity member and feel you are being racially discriminated against at work contact us. There are many ways we can seek to help you.

 

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Disciplinary Procedures

Introduction

The Employment Act 2002 and the Employment Act 2002 Dispute Resolutions) Regulations 2004 introduced provisions designed to encourage employers and employees to resolve disputes without having to go to an Employment Tribunal. An employer’s own policies can be more detailed, but must incorporate these minimum requirements.

Dismissal and Disciplinary Procedures
There are two types of dismissal and disciplinary procedure: standard and modified


Standard Procedure
This is a three-stage process:

1. Statement of grounds for action and invitation to a meeting.
The employer must set out in writing the employee’s alleged conduct or characteristics, or other circumstances, which led him to contemplate dismissing or taking disciplinary action against the employee.


The employer must send the statement or a copy of it to the employee and invite the employee to attend a meeting to discuss the matter.
2. Meeting
The meeting must take place before action is taken, except in the case where the disciplinary action consists of suspension.
The meeting must not take  place unless - 
a. The employer has explained the basis for the disciplinary proceedings
b. The employee has been given a reasonable opportunity to consider his response.

The employee must take all reasonable steps to attend the meeting.
After the meeting the employer must inform the employee of his decision and notify the employee of the right to appeal against the decision if he or she is not satisfied with it.
3.  Appeal
If the employee wishes to appeal, he or she must inform the employer
If the employee informs the employer of his or her wish to appeal, the employer must invite the employee to attend a further meeting.

The employer must take all reasonable steps to attend the meeting.
The appeal meeting need not take place before the dismissal or disciplinary action takes effect.
After the appeal meeting the employer must inform the employee of his final decision.

When will the standard procedure apply?

It only applies in respect of ‘employees’; it does not extend to ‘workers’
It applies where the employer ‘contemplates action’

a. Where an employer contemplates dismissing an employee
b. Action short of dismissal, based wholly or mainly on the employee’s conduct or capability, other than suspension on full pay or the issue of warnings


Modified procedure


This is a two-stage process.

1. Statement of grounds for action
The employer must

a. set out in writing (i) the employee’s alleged misconduct which has led to dismissal, (ii) the basis for thinking at the time of dismissal that the employee was guilty of gross misconduct and (iii) the employees right to appeal against the dismissal.
b. Send the statement, or copy of it to the employee

2. Appeal
If the employee does wish to appeal, he or she must inform the employer

If the employee informs the employer of his or her wish to appeal, the employer must invite the employee to attend a further meeting
The employer must take all reasonable steps to attend the meeting
After the appeal meeting the employer must inform the employee of his final decision.

When will the modified procedure apply?
It only applies to a small number of gross misconduct cases where: -
The employer dismissed the employee by reason of his or her conduct without notice
The dismissal occurred at the time the employer became aware of the conduct or immediately thereafter
The employer was entitled, in the circumstances, to dismiss the employee by reason of his or her conduct without notice or any payment in lieu of notice, and
It was reasonable for the employer, in the circumstances, to dismiss the employee before enquiring into the circumstances in which the conduct took place

General Requirements of both the standard and modified procedure
There are several requirements common to both the standard and modified procedure:

1. Each step must be taken without unreasonable delay
2. The timing and location of the meetings must be reasonable
3. Meetings must be conducted in a manner, which allows both employer and employee to explain their case
4. Insofar as possible, a more senior manager should hear appeals
5. An employee has the right to be accompanied by a Trade Union Representative or another of the employer’s workers at any hearing under the statutory procedures.

The Right to be Accompanied
Under section 10 of the Employment Relations Act 1999 (ERA 99), as amended by the ERA 2004, a worker who is required or invited by an employer to attend a disciplinary or grievance hearing has the right to bring a companion. The companion is chosen by the worker and can be a full-time union official (whether or not the union is recognised), a certified lay official (someone the union has trained to accompany individuals to hearings) or a workplace colleague.

Solidarity can provide trained officials to accompany members.

At the hearing, the companion has the right to put the worker’s case, confer with the worker, sum up the case and respond on the workers behalf to any view expressed at the hearing but cannot answer questions on behalf of the worker.
He worker and the companion have protection against any detrimental act of dismissal in connection with exercising their section 10 rights. If working for the same employer, both the companion and the worker have the right to be paid. A lay official working for a different employer would be protected from detrimental action by that employer, but has not right to be paid by that employer for any time taken to deal with the hearing.

Dismissals to which neither procedure applies

All the employees of a description or in a category to which the employee belongs are dismissed, provided that the employer offers to re-engage all the employees so dismissed either before or upon the termination of their contracts
The dismissal is one of a number of dismissals in respect of which the employer has a duty under section 188 of TULRCA to consult collectively
At the time of the dismissal, the employee is taking part in unofficial industrial action, or other strike or other industrial action unless the circumstances of the dismissal are such that by virtue of s238(2) TULRCA an employment tribunal is entitled to determine whether the dismissal was fair or unfair
The reason or principal reason for dismissal is that the employee could not continue to work in the position, which he or she held without contravention of a duty or restriction imposed by or under any enactment

The employee is one to whom a dismissal procedure agreement designated by an order under s110 ERA applies at the date of dismissal.

Constructive dismissal

General Exemptions

There are some general exemptions to both the disciplinary and grievance procedures where:

The party has grounds for believing that starting or continuing with the procedure would result in a significant threat to any person or property

The party has been subject to harassment and has reasonable grounds to believe that starting or continuing with the procedure would result in his or her being subjected to further harassment

It is not practical to begin the procedure or to comply with a substantial requirement within a reasonable period.

Results of failing to follow procedure

Any employer that is contemplating dismissing an employee must follow the statutory procedure, otherwise any dismissal will be automatically unfair (ERA 96, section 98A) and the employee will receive a minimum award of four weeks’ pay (capped at a certain level). A requirement of one year’s qualifying service applies here.

A tribunal can increase or decrease the amount of any compensation depending on who is at fault.

What else might make a dismissal unfair?

Even if the employer has followed the statutory DDPs, certain procedural matters could make a dismissal unfair. These include:

A failure to consider a lesser penalty than dismissal

Holding a hearing without the employee present (apart from exceptional circumstances)

A refusal to take into account new evidence presented at the appeal

Failure to carry out disciplinary hearings in accordance with the rules of natural justice (Campion v Harmsworthy Engineering [1987] ICR 966)

Failure to obtain sufficient proof of the charge and an inadequate investigation (ILEA v Gravett [1988] IRLR 497

A delay in fixing a date for the disciplinary appeal

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Grievance Procedure

Solidarity has prepared this Q&A guide to help explain what a grievance procedure is and how it works.


Please note that while we offer this guide, you should always contact the Union for advice and representation before submitting a grievance or attending a meeting.


What are grievance procedures for?
A grievance procedure is one way to resolve an issue at work. It allows you to raise a problem with your employer or make a complaint to them. Examples of issues which you may wish to raise with your employer include:

  • Violation of your terms of employment
  • Violation of your statutory employment rights
  • Violation of your pay and working conditions
  • Disagreements with co-workers
  • Discrimination
  • Harassment or bullying
  • Victimisation

A grievance procedure can allow an issue to be resolved without recourse to an employment tribunal.


You may first of all decide to informally raise the issue with your employer, line manager or another appropriate person. If this fails to resolve the issue, then a formal grievance procedure would be the next step.


Why should I consider using a grievance procedure?
Grievance procedures provide a formal, organised process for employees to raise issues with their employers. This process ensures that your rights as an employee are protected, and provides a set of clear steps to resolve your issue.
You should not be dismissed or suffer disadvantage in the workplace for raising a genuine grievance about your statutory employment rights or rights you have under your employment contract.


Requirements to receive a fair grievance procedure are set on in a  code of practice set out by the Advisory, Conciliation and Arbitration Service (Acas). An employment tribunal can raise or lower the award they make by up to 25% if they judge that either you or your employer has unreasonably failed to follow any provision of the Acas code of practice.


Can I use a grievance procedure?
A grievance procedure is a common method used to resolve a wide variety of workplace issues.
There are only a limited number of quite specific issues for which a grievance procedure cannot be used. These are listed below:


If you have ceased to be employed, and, since your employment ended it is no longer reasonably practicable for you to send the statement of grievance.
If your grievance is about an actual or contemplated dismissal (other than constructive dismissal).
If your grievance is about ‘relevant disciplinary action’ that the employer has taken or is contemplating unless one of the reasons for the grievance is:

a. relevant disciplinary action is action short of dismissal that the employer asserts to be based wholly or mainly on the employees conduct or capability, other than suspension on full pay or the issuing of warnings. Where relevant disciplinary action occurs the standard DDP applies.
b. However where the employee is dissastified with the relevant disciplinary action taken or contemplated, the GP will apply in addition to the DDP if the reason for the employee’s grievance is one of the two following reasons:


(i) The disciplinary action taken or being contemplated by the employer amounted to or would amount to unlawful discrimination

(ii) The ground on which the employer took or is contemplating taking the disciplinary action is unrelated to the ground on which he asserted that he took or is asserting that the is contemplating that action
So long as the issue you want to raise does not fall within the above categories, a grievance procedure would provide an ideal framework for you to resolve your issue with your employer.

How do grievance procedures work?
There are two stages which are involved in all grievance procedures. The first is for you to submit a written statement of grievance to your employer. The second is for a meeting between you and your employer to attempt to the resolve the issue. If you are unhappy with the outcome of that meeting, an additional appeal stage may be involved.
We outline further detail on the two initial stages below:

1. Written Statement of Grievance
As the employee, you must set out your grievance in writing and send a copy to your employer. We recommend that you use registered or recorded delivery mail and advise against using internal mail systems.
You should stick to facts which are relevant to your grievance, and never use abusive language. You may announce your resignation in the grievance letter (a principle established in the case Shergold v Fieldway Medical Centre), however if you resign with immediate effect then the letter may not constitute a statement of grievance.
Your employer's grievance procedure should say who to send your letter to. If this turns out to be the person concerned in your grievance, or if they have ignored your previous complaints, then you may send the letter to their boss or to the HR department instead.

2. The Meeting
After you have submitted a written statement of grievance, your employer must invite you to attend a meeting (sometimes called a hearing) to discuss the grievance. They should do this soon after receiving your letter. The meeting should be at a convenient time for you and anyone else involved. You can ask for more time to prepare if you think you need it. Your employer doesn’t have to agree to this, but if they don’t you should make sure your lack of preparation time is noted. You must take all reasonable steps to attend this meeting.


This meeting must not take place unless you have informed the employer of your grievance in a written statement of grievance, and your employer has had reasonable opportunity to consider their response to the grievance.
At the meeting, your grievance should be considered in a fair and unbiased way. Other parties involved in the grievance may also be invited to attend by your employer – you should tell your employer if you are uncomfortable with this.
You have a legal right to bring a ‘companion’ along with you to the meeting. For more information see further below in the section Can I take anybody with me to the meeting?


You should make sure you are well prepared for the meeting. You are allowed to bring notes to help you remember what you want to say. You should be allowed to explain your grievance and suggest how you think it could be resolved.
After the meeting, your employer must inform you of their decision in response to the grievance. They must also notify you of your right to appeal if you are dissatisfied with their decision, and provide you with notes detailing what took place during the meeting. They should also confirm the outcome of the meeting in writing, although they may inform you verbally at first.

Can I take somebody with me to the meeting?
You have a legal right to take a 'companion' with you to the meeting, although you must inform your employer beforehand if you wish to do this.
You can request to take anybody with you to the meeting as your companion, including a family member or a Citizen’s Advice Bureau worker. Your employer must always accept any of the following as your companion:

  • A fellow worker
  • A workplace trade union representative who is certified by the union as being competent to accompany you to the meeting
  • An employed official of a trade union (even if you are not a member of that union)

Your companion can present your case for you, speak on your behalf and confer with you during the meeting. Your employer must arrange the meeting to be at a convenient time for your companion, and you can postpone the meeting for up to five days to ensure this. It may however be deemed unreasonable if your chosen companion is from a distant or remote location when a suitable alternative is more easily available.


Can I appeal the decision?
You always have the right to appeal your employer’s decision regarding your grievance. To make use of this right, you must inform your employer by writing a letter to them stating the grounds for your appeal, and do so without unreasonable delay.

Your employer should however give you enough time to make an appeal; if they don’t, you should make your appeal anyway and offer to provide further information later. If you are considering escalating the issue to an employment tribunal, you should consider making an appeal first even if it seems pointless, as your tribunal award may be reduced if you don’t.


Once you have submitted the appeal, an appeal hearing would be arranged which your employer must make all reasonable steps to attend. The appeal hearing is similar to the original meeting, but is usually heard by a higher level of management, an Acas mediator or another independent person. You can bring a companion with you to the appeal hearing just like at the original meeting. You should also inform your employer if you intend to do this, even if the companion attended the original meeting.


After the appeal hearing, your employer must inform you of their final decision regarding your grievance, and whether or not your appeal has been successful.


What if my appeal fails?
If you are unhappy with the decision made following your appeal, there are still a number of options available to you. You should consider seeking legal advice before deciding what you do.
You may choose to take the matter to an employment tribunal, a county court, the High Court, or (in Scotland) a sheriff court or the Court of Session.


Alternatively, you could try the Early Conciliation scheme run by Acas, which is a free service designed to resolve workplace disputes. Acas are obliged to offer you this service if you are considering lodging a claim at an employment tribunal. You can find out more information about this on their website.


If you choose to take the matter to an employment tribunal, there are time limits that you should be aware of which will apply to certain types of grievance. You must ensure they receive a claim for unfair dismissal within three months of the effective date of termination of your employment, although if you opt to use the Acas Early Conciliation scheme before going to an employment tribunal, the three month deadline will be frozen for the duration of the Early Conciliation scheme. In cases where you intend to resign on the grounds of constructive dismissal, you must do so within a reasonable time; otherwise the contract might be seen as having been confirmed by you.


Also, in cases where a submission is made to the employment tribunal without first undertaking a grievance procedure, there is an automatic extension of three months to comply with the grievance procedure and resubmit the claim. There is also a three month extension to make a submission to an employment tribunal in cases where the claimant has complied with the outcome of their grievance procedure.


If your case goes to an employment tribunal, they may increase or decrease your award by up to 25%. Their decision will depend on if they rule that you or your employer have failed to follow the provisions of the procedure undertaken prior to taking your case to the employment tribunal.


Whether you choose to use the Early Conciliation scheme or escalate your grievance to a court or employment tribunal, you should ensure you keep notes of the entire process so far. Your employer should give you copies of the meeting records which they hold.
These records should include:

 

  • The nature of the grievance
  • Copy of meeting records
  • What was decided and actions taken
  • The reason for the actions
  • Whether an appeal was lodged
  • The outcome of the appeal
  • Any subsequent developments

It should be noted that there are three scenarios in which you cannot take your grievance to an employment tribunal. These are if you have:

  • Failed to send a statement of grievance to the employer before bringing a tribunal claim
  • Sent the statement of grievance but not waited 28 days after doing so before bringing the tribunal claim
  • Not sent the statement of grievance until one month or more after the expiry of the original time limit for bringing the tribunal claim in question


It should be noted that while it is useful for you to have this information, most grievance procedures are resolved without having to go to an employment tribunal or a court. We also emphasise the fact that we have provided this guide to help you learn more about the process, you should always contact the Union for advice and representation before submitting a grievance or attending a meeting. We provide assistance for our members and we have a special scheme to help those who are not existing members of our Union.


We introduced the special scheme because we were getting so many desperate phone calls from people unfairly treated at work who were not members of our or any Union. Under our scheme if a worker in trouble joins Solidarity they will can get quality advice but also, for the payment of a modest fee, physical representation. Ring Graham Williamson on 07970 455445 and we can start to help.

 

Legal disclaimer

The information contained within this article is not a complete or final statement of the law and is based on the laws of England, Wales, Scotland and Northern Ireland.

While Solidarity has sought to ensure that the information is accurate and up to date, it is not responsible and will not be held liable for any inaccuracies and their consequences, including any loss arising from relying on this information.