HR News Round-up 

 

 

 

 

 

 

 

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Following the recent changes in the collective consultation rules, ACAS has now issued some guidance for employers on handling such situations. The guidance is not legally binding on employers, but as with other ACAS guidance, it is probable that this will be used by Tribunals as a benchmark for best practice. 

 

The guidance also gives clarity to the meaning of ‘establishment’ and suggests a number of questions that it would be useful for employers to ask to identify if the unit to which the workers made redundant are assigned to carry out their duties is an ‘establishment; in particular, is the workplace: 

 

It is also recommended by ACAS that when dealing with employees over a number of geographical locations, employers should check the contracts of employment for those employees in terms of what is stated about work location and specific management structures. In addition, it is suggested that the employer also checks for what is actually happening in practice which may not necessarily be the same as what is written down. 

 

However; although only just issued, this guidance may be about to be classed as out-dated and may require urgent revision following the recent ruling in... 

 

Makbool Javiad (Simons Muirhead and Burton) has reported in People Management that the recent ruling in the case between USDAW (Union of Shop, Distributive and Allied Workers) and the former retail ‘giant’ Woolworths may result in an overturning of the current rules of what is an ‘establishment’ for the purpose of collective consultation. 

 

This case has re-highlighted the discrepancy between the Trade Union and Labour Relations (Consolidation) Act 1992 (TULRCA) and the EU Directive. The former places the obligation on employers to consult collectively if they propose to ‘dismiss as redundant 20 or more employees at one ‘establishment’ within a period of 90 days or less’. The EU Directive requires that employers consult with ‘workers representatives ‘in good time’ and ‘with a view to reaching agreement’. The difference being that the EU Directive applies even where the redundancies may be taking place at different locations, where TULRA states that the redundancies must be taking place at just one establishment for there to be a duty to consult collectively. 

 

This incompatibility has been known for several years, but up until now the Courts have not been persuaded to interpret TULRCA to give effect to the EU Directive. However, the EAT in the Woolworths case has ‘intervened to correct the wording of the domestic legislation’. 

The facts of this case were that when Woolworths very publicly entered insolvency in 2008, it was determined that each individual store was an establishment in its own right. Consequently, those stores which employed fewer than 20 employees had no obligation to collectively consult with its staff over the proposals to make them redundant. As a result, over 3000 former employees could not receive a ‘protective award’ for a failure to consult. 

 

Although the full written judgement of the EAT is not yet available, it has been reported by USDAW that the EAT ruled that the words ‘at one establishment’ should be disregarded for the purposes of any collective redundancy involving more than 20 employees. This means that once there is a proposal to make more than 20 people redundant in a single business, the location where they are working becomes irrelevant. This is illustrated perfectly by the given example; if a retailer closes 30 stores and in each of those shops it employs fewer than 20 people, they will now have a duty to conduct collective consultation whereas previously, they would not. 

 

 

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In the wake of the ‘Jimmy Saville’ scandal, the BBC has found itself at the centre of a great deal of media attention in months, compounded this week with the news that another of its presenters, Stuart Hall has now admitted to 13 counts of indecent assault against young children. Whilst the latter of these will be dealt with in the Courts in the first instance, the BBC has announced this week that it will be overhauling its Bullying and Harassment Policy following the publication of the ‘Respect at Work Review’, commissioned in response to the initial ‘Jimmy Saville’ scandal. 

 

Considering contributions from over 900 individuals, including past and present staff, as well as the Trades Unions, the key findings of the review were: - 

 

The Senior Management of the BBC have accepted recommendations made within that review and as a consequence, will be reworking their policy to; ensure that there is a greater focus on informal rather than formal conflict resolution, reduce the time taken to hear grievances by two thirds and more significantly, the policy will require grievances to be heard by managers from outside the division where the issue has arisen. 

 

In a separate announcement, the BBC has also confirmed that it will no longer incorporate ‘gagging clauses’ into new contracts and/or compromise agreements, though where appropriate, they will continue to use confidentiality agreements. This follows the decision by the Government last month to remove such clauses from compromise agreements within the NHS. 

 

The BBC have been praised for their stance by Dinah Rose, QC who has contributed to the review, has said; ‘I have been very impressed by the integrity and determination with which the BBC has undertaken this important piece of work. The BBC's senior management has been willing to listen to difficult and uncomfortable messages, and to accept criticism, and has sought to make practical and effective recommendations for the future. I am glad that I have been able to assist in the creation of the Report, and look forward to seeing its implementation.’ 

 

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Some interesting news snippets have been reported in People Management this month... 

 

Business Secretary, Vince Cable has ordered a 'fact-finding' exercise into the use of 'zero-hours' contracts across the Public and Private Sector. There has been a significant increase in the use of these contracts in recent years and official figures place the number of people on such contracts at 200,000. They are generally used by employers where fluctuations in demand mean that they can't guarantee a fixed number of hours of work each week, but need people on 'stand-by' for when there is demand increases and there is work for them to complete. Under such contracts, there is no obligation on the employer to provide the employee with work, nor on the employee to accept any work that is offered to them. Whilst these contracts are used legitimately by many organisations, there is anecdotal evidence to suggest that there is some abuse of their use and this has prompted the Government review; to understand exactly how these contracts are being used and what is the impact of them on both the employer and the employee. We will report back on the findings of this review once they are known. 

 

Research conducted by the Manufacturers' Organisation, the EEF has shown that three-years after the introduction of 'fit notes'; which replaced 'sick notes', only 25% of employers have noticed any decrease in the time taken for employees to return to work following a period of sickness absence. This is despite an increase in the numbers of organisations willing to make adjustments to assist employees to return to work. The intention behind 'fit notes' is for GP's to offer advice to employers about an employee's sickness and whether it is possible for them to work albeit in a reduced or alternative capacity whilst they recover. Terry Woolmer, Head of Health and Safety Policy at the EEF has warned that 'employers who were willing to give the 'fit-note' a chance are now becoming increasingly dissatisfied with the quality of advice that it is providing'. 

 

The TUC has reported that only one of out every 172 new fathers (0.6%) is taking advantage of the current provisions for extended paternity leave following the birth of their child. Currently, new fathers can take up to 26-weeks leave, of which 19-weeks is paid at a statutory rate of £136.78 per week, if their partner has returned to work no earlier than 20-weeks after the birth of the baby. It is suggested by the TUC that the level of statutory pay is a factor and if this was higher, then the take-up would be greater.This is an interesting point; given that the levels of statutory paternity pay is equivalent to the level of statutory maternity pay, are they suggesting that this should also be increased as to do anything else, would seem to be supporting pay inequality... This research has been conducted ahead of the Governments plans to introduce 'shared parental leave' in 2015 and it will be interesting to note if this has any impact on those plans. 

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This first case, (1) Christou and (2) Ward v London Borough of Haringey is an interesting case that has been reported recently; for many the names will probably not be familiar, but everyone will know the case... The claimants in this case are the Social Worker (Ms Ward) and her team Manager (Mrs Christou) who were responsible for the ‘Baby P’ case, the case of the toddler who died in 2007 as a result of abuse by his mother, her boyfriend and his brother. 

 

Following Baby P’s death, a Serious Case Review was held within the Children’s Services section of the Council, which was headed up by Sharon Shoesmith at the time. Following this review; Ms Ward was assured that she would not be dismissed as a result of this case, but she was disciplined using a ‘simplified disciplinary process’, a process used to deal with cases of minor misconduct and within which, the maximum penalty which could be applied was a written warning. The allegations Ms Ward faced within this simplified process related to ‘lack of recording’ and other procedural issues and she was given a written warning, with no right of appeal. Under the same procedure, Mrs Christou also received a written warning, having faced allegations of lack of supervision, management direction and knowledge of tasks which had not been completed. 

 

Baby P’s mother pleaded guilty to the charge of allowing or causing his death and both her partner and his brother were found guilty of that charge on 11th November 2008. This then led to the announcement on 12th November by the Secretary of State that an investigation into child protection and child welfare services in Haringey would be conducted. The ensuing report identified serious concerns with the Council’s safeguarding services and following the appointment of an interim Director of Children’s Services, a further internal investigation was conducted into the actions of council staff involved in the case, which included Ms Ward and Mrs Christou. 

 

This new investigation considered issues which had not been looked at during the earlier hearing, even though the underlying facts would have been present at that time. The Investigating Officer was aware that disciplinary sanctions had been applied against Ms Ward and Mrs Christou and he was asked to assess whether these sanctions were sufficient in light of the evidence that had been available at the time to the hearings, as well as that which became available from the later criminal proceedings. The Investigator concluded that had child protection procedures and ‘sound’ professional judgement been applied consistently following an earlier injury to Baby P; action might have been taken which may have prevented his death. Further, the Investigator regarded the earlier disciplinary proceedings to be unsafe, unsound and inadequate in the circumstances and that it was justified for further disciplinary hearings to be convened; the outcome of which resulted in the dismissal of both Ms Ward and Mrs Christou. Both then claimed unfair dismissal. 

 

The case considered the legal principle of Res Judicata; which provides that where a decision is pronounced by a judicial or other tribunal with jurisdiction over a particular matter, that same matter cannot be reopened by parties bound by that decision except for in the case of an appeal. This creates ‘finality’ in litigation and prevents a party being vexed by being twice subjected to the same litigation. 

 

Consequently; if Res Judicata applied to the first disciplinary hearing, for which the process did not allow any right of appeal, then the second disciplinary procedure would have been ‘unlawful’ and the dismissals would have been unfair. The claim was dismissed by the Employment Tribunal, finding that the new management regime took a different view of the seriousness of the matters involved with the case and were therefore entitled to bring a second disciplinary procedure against the two individuals and for which, dismissal was within the ‘range of reasonable responses’. 

 

Ms Ward and Mrs Christou appealed against this decision to the Employment Appeal Tribunal (EAT); their appeals though were dismissed by the EAT, who confirmed that the principle of Res Judicata did not apply within internal disciplinary proceedings. 

 

Finally, Ms Ward and Mrs Christou took their case to the Court of Appeal; who upheld the decision of the earlier Courts and supported the view taken by the EAT in relation to the principle of Res Judicata. 

 

In determining whether a dismissal is fair or unfair, the test considered by the Employment Tribunal is whether the dismissal is reasonable in all of the circumstances; employers are not prevented from conducting further disciplinary hearings based on the same facts, but in order to show that they have acted reasonably in all of the circumstances, they must demonstrate that they had very good reasons for doing so. 

In this particular case, the facts were perhaps a little unusual; although the basic facts of the case remained unchanged, there was a refocus of the seriousness of the employee’s failings in the case – shifting from procedural failings to consideration of the much more serious impact of those failings on child safety and welfare. 

 

However, this case does not give employers ‘carte blanche’ to revisit earlier disciplinary decisions where the benefit of hindsight suggests that the sanction imposed should have been of greater severity or because a senior person is not happy with the outcome. In fact, the EAT had stated that the circumstances in which it would be appropriate to commence secondary proceedings based upon the same set of facts would be extremely rare indeed. 

 

 

In this case, Jafri v. Lincoln College; Mr Jafri was an employee of the College and worked as a teacher in Sudbury Prison from 1988 until his dismissal in 2010. During 2009, allegations were made against him by Mrs C and other female employees at the prison of ‘bullying and harassment’ and it was determined by the Prison Governor that Mr Jafri should be excluded from the prison until these claims could be investigated by the college. Mr Jafri then countered these allegations by raising his own grievance and specifically citing that the allegations were untrue. 

 

Before the investigation could be concluded, Mrs C left the prison under a compromise agreement and subsequent to this; the college concluded the investigation conducting an informal process to issue Mr Jafri with an oral warning and upheld the grievance as submitted by him. 

 

Mr Jafri then applied for the vacancy created by Mrs C’s departure but was told by the Prison Governor; who had not been informed by the College that the investigations had been concluded as outlined above and that his suspension had been lifted, that under no circumstances would Mr Jafri be allowed back to work in the prison. 

 

Once the Prison Governor was made aware of the situation, he maintained his stance of not allowing Mr Jafri to return to work within the prison and he did not believe that he needed to justify this stance as he was not Mr Jafri's employer. The College’s attempts to get the Prison Governor to change his mind proved fruitless, as did their attempts to redeploy him; principally due to Mr Jafri's own attitude in regard to his own situation. Consequently, Mr Jafri was dismissed from his role with the College on the grounds of ‘some other substantial reason’. 

 

The Tribunal acknowledged this apparently harsh outcome, but dismissed his claim for unfair dismissal as ‘any injustice had to be balanced against what it was practical for the employer to do in the circumstances’. Mr Jafri appealed against this decision and his appeal was rejected by the EAT. The basis for this decision being that; whilst taking into account the stigma associated with the ‘injustice’ and the potential impact of Mr Jafri not being able to work with vulnerable adults in the future; the Tribunal’s questioning of what more the College could have done in the circumstances and its conclusion that the College had done all it could reasonably have done in those circumstances was the correct conclusion for the Tribunal to reach.