New ACAS Code on Disciplinary and Greivance Procedures

The revised ACAS Code of Practice on disciplinary and grievance procedures has been published. It comes into effect on 6th April 2009 when it will replace the statutory dismissal and grievance procedures. Under the new Code employees will no longer be barred from lodging a claim without first raising a grievance and, on a more positive note, an employer's failure to follow the code will not result in a finding of automatic unfair dismissal. However, financial sanctions for failing to follow procedures remain. An unreasonable failure by an employer to follow the Code will result in a Tribunal having the power to increase any award by up to 25%.

The new Code is extremely important as it will now set the benchmark for disciplinary and grievance procedures.

Redundancy: Dotting The I's And Crossing The T's

A recent case has served as an important reminder that employers must properly consult about redundancy procedures. It also stresses the importance of a "paper trail" to justify the scoring of employees.

In E-sec Medical Transport Service Limited and Gregory, the EAT upheld the Tribunal’s decision that an employee's redundancy had been unfair. Ms Gregory was employed as an ambulance driver by E-sec and, due to a downturn in work, E-sec decided to restructure the site and make 4 employees redundant from a pool of 14. The senior HR Manager supervised the selection process. Nine selection criteria were identified and marks were allocated accordingly. Ms Gregory was called to a meeting, informed of the marks she had been awarded and it was confirmed that she was at risk of redundancy. She was invited to a further meeting at which she was informed that she was dismissed.

The EAT noted that E-sec had failed to consult with the unions or employees as to the method of selection, the criteria to be adopted or the marking process. It was subsequently concluded that the selection process had been unfair and had fallen outside the "band of reasonable responses". The Regional Manager, who assessed the key criteria alone, was unable to support his marking by reference to any company documentation and he did not make any notes on how he had come to his decision.

Case of the Month

Do you remember Mrs Eweida? She was the Christian employee of British Airways Plc who issued a claim for religious discrimination when BA insisted that she concealed the cross on her necklace. Her claim failed but she appealed to the EAT and her appeal has just been decided. Unfortunately for her, the appeal failed. The EAT decided that there was not enough evidence to prove that BA’s policy placed Christians “at a particular disadvantage”. Is this a rare victory for common sense?

New Compensation Limits

The annual increase in compensation limits has been announced. A week’s pay for calculating statutory entitlements (for example redundancy) has increased from £330 to £350 with effect from 1 February 2009. The maximum redundancy payment will be £10,500 and the maximum compensation award for unfair dismissal will be £66,200.

Tribunal Interprets DDA to Include Associative Discrimination

In July we reported a landmark judgement handed down from the ECJ. The ECJ held in Coleman V Attridge that the Disability Discrimination Act should be interpreted as protecting those who suffer discrimination or harassment "by association" i.e. where a victim suffers discrimination because of the disability of someone else, with whom the victim has a relationship.

The case was then returned to the Tribunal to determine the case. The Tribunal found the DDA to be capable of an interpretation protecting against associative discrimination without distorting the words of the statute. The case will now proceed to a full hearing to decide on the substantive merits of the claim.

Tribunal Bias

In City and County of Swansea v Honey the EAT set aside three Tribunal decisions where one of the lay members was a union official and, at the time of the proceedings, was involved in a dispute with Swansea council and had publicly criticised it. The Tribunal originally found that Mr Honey, a Senior Legal Executive with the Council, had been automatically unfairly dismissed and awarded him the statutory maximum compensation. The employer argued apparent bias and, in an unusual move, the EAT agreed.