1 Jacqui Atkinson, Partner for Capsticks Jog Hundle, Partner for Mills & Reeve LLP Sarah Michael, Partner for Bevan Brittan, LLP Severance Arrangements and Settlement Agreements When does approval need to be obtained for severances from DH/Monitor and HM Treasury? Do we still have to get approval for redundancies? Prior approval needs to be obtained from DH in the case of NHS Trusts and CCGs and from Monitor in the case of Foundation Trusts, as well as from Treasury for all special severance payments, which put simply amount to non-contractual severance payments to employees. If DH or Monitor approve the business case, they seek Treasury approval on behalf of the employer. As from 11 March 2013, any employment tribunal claims settled with a severance payment at judicial mediation must now be approved in advance by HM Treasury. The Trust Development Authority has issued guidance to NHS Trusts in June 2013 whereby they are advising NHS Trusts to seek prior approval from them for any contractual payments over 50,000 which would therefore include redundancy payments, as well as any payments
2 made to directors. The Trust Development Authority advocates involving them at an early stage; so this would be before there is any contractual obligation created to make the payment. The template form to be completed for the Trust Development Authority also requires sight of the draft settlement agreement and any reference. They are very much stepping into the shoes of the former Strategic Health Authorities, although the guidance provides for the Trust Development Authority s approval to be obtained in a larger number of circumstances than was previously the case with the Strategic Health Authorities. If the provisions of a settlement agreement (formerly called compromise agreements) are breached, how can they be enforced? In light of the Francis Report and recent coverage in respect of gagging clauses, what is the position on inserting confidentiality clauses in settlement agreements? Breaches of settlement agreements are enforced by way of a breach of contract claim. It rarely happens in practice as there is an issue as to what the employer s loss is any event. One of the great problems of settlement agreements is enforcing confidentiality. Advice from DH going back to 1999, so shortly after the Public Interest Disclosure Act protecting whistleblowers came into force, has made it clear that NHS employers should not use gagging clauses in contracts of employment and compromise agreements. Gagging clauses are restrictions which seek to prevent disclosure of information in the public interest and are in fact unenforceable under the Public Interest Disclosure Act. NHS Employers guidance on the use of compromise agreements and confidentiality clauses dated April 2013, includes a model clause regarding confidentiality at Annex A which employers are encouraged to use. It basically states that the settlement agreement shall not prejudice any rights the employee has or may have under the Public Interest Disclosure Act 1998 and/or any obligations that the employee has or may have to raise concerns about patient safety. Confidentiality clauses certainly have their place in achieving a clean break, but we all need to think very carefully about the individual circumstances in each case and which confidentiality provisions are needed so for example, is it necessary to extend confidentiality to the circumstances giving rise to the settlement agreement, to the fact that there is a settlement agreement in existence or even the fact of a payment being made. If it is a redundancy for example why would any of these restrictions be necessary. Employers also need to think carefully before inserting a non-derogatory statements clause within settlement agreements.
3 TUPE How do we minimise the risks associated with transfers given the potential increase in contracting out of services to non-nhs providers? The 2006 revision of TUPE introduced the concept of service provision change transfers. It was intended to widen the scope of TUPE to cover cases where services are outsourced, insourced or assigned to a new contractor. For there to be a service provision change, there must be an organised grouping of employees which has as its principal purpose the carrying out of activities concerned on behalf of the client. Seven years on the tribunals are awash with cases testing the scope of service provision change. Points to highlight to minimise the risks associated with such transfers: 1. getting TUPE indemnities from the current provider and if necessary through the commissioner to cover the risk of TUPE not applying on a subsequent transfer and having a price adjustment mechanism in case of hidden costs; 2. maintaining an organised grouping this means that employees must be deliberately organised for the purpose of carrying out the activities required by the particular client contract. There must be some deliberate planning or intent in the way the employees are organised not just a working practice of the employer. As providers you need to make it clear to commissioners as to who their client team is and how they are organised to deliver the service in accordance with their requirements; 3. assigning resources to the work so that it is an identifiable economic identity. The more flexibly the service is run, the more it is indistinct from other services and less likely that TUPE will apply. There are proposals to reform TUPE. The Government response to TUPE consultation has stated that the Service Provision Change definition is here to stay, with a proposed amendment in line with recent case law to state that the activities must be fundamentally or essential the same. We should have the draft of TUPE 2014 Regulations in December What are is a COSOP/ TUPE-like transfer, and what are the benefits? COSOP is the Cabinet Office Statement of Practice issued in January 2000 and revised in It was drafted by the Cabinet Office as guidance to support transfers between public sector bodies. COSOP doesn t confer any legal rights in itself and is not a mechanism capable of effecting transfers of employment. It is essentially a policy containing an
4 expectation that in circumstances where TUPE doesn t apply, the principles of TUPE should be followed and employees involved should be treated no less favourably than had TUPE applied. What a COSOP transfer can t do for example is provide for statutory continuity of service to transfer but the employer may for example maintain terms and conditions even though it doesn t need to. Therefore these employees would not have the right to claim unfair dismissal as they wouldn t have two years service. Because COSOP has these shortcomings, in the recent transition involving the abolition of PCTs, the Secretary of State didn t rely on COSP alone but used statutory transfer schemes to preserve statutory continuity of service. The benefit is that jobs and terms and conditions may be safeguarded due to the application of COSOP. However employees would have to agree to transfer on this basis. Does a transferee have the power to move a transferring employee s work location following a transfer? TUPE deems an employee s resignation to be a dismissal where it is in response to a substantial change to the employee s working conditions to their material detriment. In Tapere v South London and Maudsley NHS Trust, the EAT held that whether there has been a substantial change in working conditions for the purpose of regulation 4(9) of TUPE is a question of fact to be determined by reference to the nature, as well as the degree of change. Tapere confirms that the contractual mobility clause (we can transfer you to any Trust location) is limited to the location of the transferor Trust and not the locations of the new employer. So a tribunal will consider the impact of the proposed change from the employee s point of view and if the employee considered the change to be detrimental, whether it was a reasonable standpoint. A detriment is material if it is more than trivial or fanciful. In the Abellio London Ltd v Musse and others case, the EAT upheld a tribunal s decision that a relocation of 6 miles because of a TUPE transfer was a substantial change in bus drivers working conditions to their material detriment. A move from north to south of the river was substantial, and an increase in the working day of between one to two hours was a material detriment. One of the proposals to change TUPE is to make location changes on day one much simpler, in effect extending the definition of ETO.
5 Re-Shaping our Employment Tribunals Will the introduction of tribunal fees and capping unfair dismissal compensation, which came into force in the summer, result in a decrease in claims? How will ACAS compulsory preissue conciliation of claims work? Fees for bringing Employment Tribunal claims were implemented on 29 July Claimants are required to pay an issue fee and then a hearing fee. This is so as to transfer some of the costs of running the Employment Tribunals to the users and to encourage parties to resolve disputes. The precise amount is decided by the complexity of the claim. So level one claims cover unpaid wages and redundancy payments and level two claims cover unfair dismissal and discrimination. The issue fee in level one cases is 160 and a hearing fee of 230. The issue fee in level two cases is 230 and a hearing fee of 950. In addition unfair dismissal awards are capped to the lesser of 74,200 or a year s salary. There is a fee remission scheme in place for those unable to afford the fees. It takes into account disposable capital as well as gross income. Fees or part of the fees are being covered by unions and insurers; we assume that the fees will be covered if they believe the claims have a reasonable prospect of success. There will necessarily also be some claimants who won t want to pay the fees, but other claimants will press on. From April 2014 the majority of claims will be referred to ACAS before proceedings will be able to be issued. Proceedings therefore will not be issued until the compulsory conciliation period has passed. There will be no obligation on either party to undertake conciliation. The Early Conciliation Support Officer will make reasonable efforts to contact the claimant to obtain basic information and to set out the conciliation process. A claimant will not be able to issue proceedings until ACAS issues an early conciliation certificate. The early conciliation certificate number will have to be included on the claim form or otherwise the claim will be dismissed. However, Trusts will need to factor in the fact of needing to secure approval to severance payments for this to have any impact in the NHS.
6 The Contractual Arrangement How can contractual terms be varied? Can we issue new and different terms and conditions to new starters? How do we know if we have the ability to demote and move an employee as a disciplinary sanction? When does such a step amount to a breach of contract? The safest approach to changing fundamental terms and conditions of employment of a group of employees is through consultation with the unions where there are 20 or more employees you are proposing to dismiss to effect the change, as well as individually. Where agreement is obtained, change is straightforward. In the absence of agreement, employers will need to consider whether they are prepared to simply introduce the change in the hope that very few employees are left in disagreement or whether they are prepared to take the step of dismissing and re-engaging on new terms. The offer of re-engagement should clearly take place on or before expiry of the contract. The more radical and negative the change the harder the employer will have to work to achieve it. Employers can vary components of terms and conditions not collectively agreed for new starters fairly easily for example obtaining greater flexibility but would need to watch differences in pay for example for equal pay challenges. In any event, in terms of AfC there is a majority commitment to maintaining a national handbook of terms and conditions albeit keeping changes under review. Only if you have the contractual power to do so. Disability Should we ask Occupational Health to advise on whether or not the employee is disabled? Where an employee is on sick leave it is crucial to get some form of medical opinion and evidence to understand the employee s illness, and where it is likely to lead. The purpose of medical evidence is to inform the employer about the nature of the illness and the prognosis,
7 so the questions need to be tailored to that end. So, explaining fully what the employee s role is and asking what the employee can or should do in respect of their job and asking about ways in which the employer can help enable the employee to do their job. An employer should therefore never ask a doctor if the employee is disabled as it is not relevant to the issues the employer has to consider, also very often these assessments are made by doctors who don t take into account the legal definition and it can distort the focus of the parties. Do we need to protect pay when a disabled employee is redeployed either temporarily or permanently into a lower banded post? This gives rise to the question of reasonable adjustments. We need to consider whether a particular adjustment would have been reasonable to make in the circumstances. Does it ameliorate the disabled person s disadvantage, what is the cost in light of the employer s financial resources and what is the disruption of the adjustments on the employer s activities. The purpose of reasonable adjustments is to enabled disabled people to play a full part in the world of work, not a general duty to support through difficulties. Last year in Newcastle upon Tyne Hospitals NHS Foundation Trust v Bageley, the EAT held that the duty to make reasonable adjustments did not require an employer to top up an employee s part-time earnings during a phased return to work. The only time protection would need to be considered is where the employer s failure to pay the protection results in the disabled employee being off sick. Fixed Term Contracts A consultant is retiring next month. We and he want him to return on a fixed term contract. We are going to enter into that contract now, but to commence two weeks after his retirement to ensure that there is no continuity of employment. Is this OK? This is a very common scenario within the sector, giving the employee the benefit of both their pension and continued employment, whilst allowing the employer to continue to benefit from the employee s skills. However, following the case of Welton v Deluxe Retail Limited t/a Madhouse (in administration)  ICR 428, the scenario set out in the question is likely to result in the individual having continuity of employment for unfair dismissal purposes. Further Detail - In the case of Welton, Mr Welton had been employed in a shop in Sheffield which was closing. His employment terminated but in the week after the termination of his
8 employment he was offered employment in his previous employer s shop in Blackpool. He accepted the offer and started work the week after that, but his employment at the new store in Blackpool terminated after nine months. Mr Welton brought a claim for unfair dismissal on the basis that continuity of service was preserved during the one week break between his employment in the Sheffield and the Blackpool stores. Mr Welton was unsuccessful at first instance, but the EAT upheld his appeal and referred to section 212(1) of the Employment Rights Act 1996 which provides that: Any week during the whole or part of which an employee s relations with his employer are governed by a contract of employment counts in computing the employee s period of employment. The EAT upheld that this simply requires that a contract of employment is in place and not necessarily that work has commenced under that contract. As Mr Welton entered into a contract in the week following the termination of his employment in the Sheffield store, that week counted for continuity purposes and the fact that he then commenced employment the following week at the Blackpool store showed that he had continuity of employment dating back to the commencement of his employment at the Sheffield store. Applying that judgment to the question, if the fixed term contract is entered into with the consultant prior to the termination of his permanent position, then although there will be a two week break until the consultant commences employment under the fixed term contract, as the contract of employment will be in place, the consultant will benefit from continuity of employment. It is worth saying that this continuity of employment exists only for unfair dismissal purposes and not for contractual redundancy pay purposes. Section 16.6 of Agenda for Change specifically excludes, for the purposes of the calculation of an NHS redundancy payment, any service which has been taken into account for the purposes of pension benefits where those pension benefits have been taken. It is, however, arguable that the employee will remain entitled to a statutory redundancy payment based on the entirety of his/her service if
9 continuity is not broken and if the fixed term contract is subsequently not renewed for the reason of redundancy. Assuming then that you do not enter into the new fixed term contract until the consultant commenced employment under the fixed term contract, is the arrangement a sham to avoid continuity? The case of Booth and others v USA 1998 WL suggests that arrangements to prevent continuity do not invalidate the break in continuity. In the case of Booth, the Claimant was employed on a series of fixed term contracts, all of which were just short of two years with breaks of two weeks between each contract (this being prior to the reduction of the unfair dismissal qualification period to one year). When the last fixed term contract came to an end, Booth brought a claim for redundancy payment, with the USA arguing that he did not have the necessary continuity of service. The EAT found for the USA and upheld that there had been a break in service and continuity even though the gap between contracts was a sham arrangement designed to prevent Mr Booth gaining statutory rights. Continuity can also be preserved by way of section 212 of the Employment Rights Act However, it is strongly arguable that the two most relevant factors set out in this section, either a temporary cessation of work or employment continuing by arrangement or custom, do not apply. It seems unlikely that there is a temporary cessation as the work of the consultant will be still be there to do and it is simply that it has been agreed between the parties that the consultant will not attend work for those two weeks and will not be in employment. It would also appear that the consultant is not by arrangement or custom to be regarded as continuing employment, as the whole purpose of the arrangement is to break continuity (as per Booth v USA). Finally, this is a particularly tricky area and it is crucial as to what is said or signed when and we would therefore recommend that HR are involved as far as possible to ensure that there is no more than an agreement in principle for the consultant to return on a fixed term contract and the fixed term contract is not signed until the day that the consultant returns. I have a consultant engaged on a This is a scenario that we recently dealt with. Our client wanted to employ four full time
10 fixed term contract, who has previously retired from his full time position. He does not work on call, nor does he wish to do so. We need to engage consultants who work on call as it is more economic for us to do so. Where do I stand? permanent consultants carrying out a full rota, including on call work. As a result they were to dismiss the Claimant who was engaged on a fixed term contract and who did not wish to work on call. The client had a good business case for doing so. We successfully defended the client from a claim of unfair dismissal and the Tribunal found that the Claimant had been fairly dismissed for some other substantial reason. Further Detail - In dismissing in these circumstances, you would need to ensure that you followed a fair procedure. The non-renewal of a fixed term contract is a dismissal for the purposes of the Employment Rights Act 1996 and you will therefore need a fair reason, the Tribunal in our recent case holding some other substantial reason to be a potentially fair reason. In terms of the procedure, you would need to explain the business case clearly to the consultant and it is likely that you would need to hold a minimum of two meetings with the consultant in order to explain the business case, give the consultant the opportunity to consider that and come back with any questions, suggestions as to alternatives etc. Following the second meeting if it is clear that the consultant s feedback is not going to result in a change of approach then termination of employment can be confirmed. The ACAS Code of Practice on Disciplinary and Grievance Procedures does not apply to dismissals for the non-renewal of fixed term contracts and there is no need therefore, as a result of the ACAS Code, to offer the right of appeal against termination, although you may choose to do so for completeness. Termination of the contract can either take place at the end of the fixed term contract or earlier than that date, providing that there is a specific right within the fixed term contract for early termination. It would be usual for such a provision to be included, but we do still see the occasional fixed term contract which has no break clause within it. Finally, it is worth noting, that although the client successfully defended the claim of unfair dismissal, the consultant did not bring a claim of age discrimination. In the circumstances where you are seeking to terminate the employment of a previously retired consultant or consultants, there would be an argument to say that there is either direct age discrimination or indirect age discrimination occurring. However, both these forms of discrimination can be
11 justified and providing that you set out clearly a business case for doing so it is likely that this will constitute a legitimate aim (i.e. increasing the resources available for the same or less expenditure) and that the termination of the consultant s fixed term contract is a proportionate means of achieving the legitimate aim. Do I need to extend the contract of a fixed term employee to the end of her maternity period, where the fixed term contract would otherwise expire during the maternity leave? If we do extend the contract to the end of the maternity leave period, are we obliged to put the employee on the redeployment register when the contract approaches expiry? Our experience is that many clients do this, but whether there is a strict legal requirement to do so, is unclear. In particular, it would depend as to what the reason for the termination of the fixed term contract is. Further Detail - If the contract was to expire whilst the woman was on maternity leave and the proposed reason for non-renewal of the contract was redundancy then Regulation 10 of the Maternity and Parental Leave etc Regulations 1999 has effect. This provides that where, during the employee s maternity leave, it is not practicable by reason of redundancy to continue to employ her under her existing contract of employment she is entitled to be offered a suitable available vacancy. If there is such a suitable available vacancy, of course, the employee is not in a position to undertake that role. In these circumstances it would make sense to extend the fixed term contract of employment so that it does not expire during the maternity leave period. This will prevent the employee being redeployed into a role that she cannot carry out. Once the employee completes her maternity leave period and her fixed term contract comes to an end on the revised date, she can then be treated as any other potentially redundant employee. Alternatively, if the potentially fair reason for not extending the fixed term contract is some other substantial reason, then there is no automatic right for the employee to be offered a suitable available vacancy. However, the line between whether an employee is being dismissed by reason of redundancy or for some other substantial reason on the termination of fixed term contract is sometimes a little blurred. Indeed, employers will often seek to justify dismissals as being for some other substantial reason, yet still make a redundancy payment or offer redeployment. This is one possible reason why many employers choose to continue employment until the end of the maternity leave period. Answering the second part of the question, once the maternity leave period has come to an
12 end then Regulation 10 of the Maternity and Parental Leave etc Regulations 1999 no longer applies. The employee should be taken through a redundancy process as any other member of staff would be, including permanent members of staff. It is important to ensure that just because the employee is on a fixed term contract that she is not treated less favourably as a result, such treatment being in contravention of the Fixed Term Employees (Prevention of Less Favourable Treatment) Regulations Assuming therefore that permanent members of staff have the right to be placed on a redeployment register when at risk from redundancy then the fixed term members of staff should be treated likewise. At all times the employee should be dealt with fairly and consistently with permanent members of staff (to avoid any suggestion of less favourable treatment on fixed term status). However, it is also important that, just because she is pregnant, you do not treat her more favourably than you would treat males or that if you do that such treatment is proportionate, remembering the case of Eversheds Legal Services Ltd v De Belin  3 CMLR 12 where a female lawyer on maternity leave was treated more favourably than a male lawyer to a disproportionate extent, during a redundancy selection process, and the male lawyer s subsequent dismissal was found to be unfair and discriminatory on the grounds of sex. Implementing Agenda for Change Do we have to negotiate the new performance related pay policies with unions or just consult on them? It will depend on what your local recognition agreement with your trade unions says. The changes have been agreed nationally, but if your local agreement requires that any changes to pay are to be agreed with the unions, then we believe, these changes will also have to be agreed locally, not just consulted on. We also believe that this is consistent with a contractual incorporation of Agenda for Change and the specific requirement of the new Annex. Further Detail The new performance related pay terms and conditions were added to the Agenda for Change Handbook and implemented with effect from 31 March 2013, as a new Annex W. These amendments have been agreed at a national level with the trade unions but local performance and pay progression policies are to be developed in partnership.
13 In order for the changes to be an effective variation to employees terms and conditions at a local level, the variation must be in accordance with the local employer s existing agreement with the trade unions. It will therefore be necessary to refer back to the recognition agreement to ascertain how changes to pay are to be implemented. If the recognition agreement gives the employer the specific right to implement changes to pay agreed on a national level without further local negotiation/agreement, then we believe that it will only be necessary to consult with the trade unions about the implementation of performance related pay, and it will not be necessary to seek their agreement to it. However, in many cases we would expect that recognition agreements would require any changes in terms regarding pay to be the subject of negotiation between the local employer and the trade unions. In such circumstances, whilst the unions may have accepted the amendments to Agenda for Change on a national level, we believe that the position, on a local level, is that for the amendments to be effective they will also need to be agreed locally. Further, assuming that Agenda for Change terms are incorporated contractually into terms and conditions, the requirement in Annex W for local performance and pay progression policies to be developed in partnership, would seem to be consistent with a requirement to agree their implementation, not merely consult about them. Although the wording is open to interpretation, we would suggest that consultation that failed to reach agreement, and subsequent enforcement by the employer, is contrary to the Agenda for Change requirement to develop in partnership. If the amendments are required to be agreed locally, and they are implemented without agreement, then there is the possibility that employees may bring claims for unlawful deductions from wages and/or breach of contract claims, and in the most extreme cases, employees may resign and seek to claim constructive dismissal. It is also worth remembering that a local equality impact assessment will need to be carried out before implementing changes to terms and conditions. Employers should review the national equality assessment (which is available on the NHS Employers web site) and
14 undertake their own assessments in line with the public sector equality duty, in partnership with trade unions. Employers will need to identify the data that needs to be collected going forward in order to monitor the equality impact and take any remedial action as may be necessary. How do we know if our policies are contractual or not? The answer is that it is not always obvious, but in effect a policy is likely to be contractual if (i) it deals with a subject which you have agreed with your local trade unions will be the subject of collective bargaining, or (ii) it is a policy incorporated by Agenda for Change, or (iii) the policy is stated to have contractual effect. If it is none of these, it is likely that the policy does not have contractual effect. Further Detail The starting point for assessing whether a policy will have contractual effect is to review the employer s recognition agreement with local trade unions as to what the employer has agreed to collectively bargain on. Matters for collective bargaining are all matters which will have contractual effect, and any such matters which are contained in policies should result in the policies being deemed to have contractual effect. Practically, it is not convenient to have to refer back to a recognition agreement every time you want to know whether a policy is contractual or not, and it is therefore sensible that policies which do have contractual effect should be marked as such (although this may not have happened historically). In addition, policies which are contained in, or taken from, Agenda for Change should also be deemed to have contractual effect as standard terms and conditions of employment will incorporate Agenda for Change terms. Finally, there may be policies the subject of which are not covered by your recognition agreement, nor are they taken from Agenda for Change, but which it was intended would have contractual effect. If so, we would expect to see these clearly marked as such on the policy. If a policy is not regarding a matter about which the employer collectively bargains, is not an
15 Agenda for Change policy, and is not specifically marked as intending to have contractual effect, then it can be assumed that it does not have contractual effect. Can we use Good Attendance as a criteria for determining performance? Although attendance is not mentioned specifically as one of the criteria for determining performance, our view is that if a local employer wishes to use it as a criterion and can agree this with the trade unions, then there is no reason why it could not be used as a criterion. Further Detail The amendments made to Agenda for Change in relation to pay progression, and effective from 31 March 2013, are implemented as a new Annex W. The Annex makes clear that incremental pay progression will be conditional upon individuals demonstrating that they have the requisite knowledge and skills/competencies for their role and that they have demonstrated the required level of performance and delivery. Annex W is entirely silent on the issue of whether attendance may, or may not, be used as a criteria. It is not therefore prohibited by the national agreement. If you review the Principles that have been agreed within Annex W (which are set down so as to inform the development of local incremental progression policies), we believe, that by implication, it may be appropriate to consider attendance as a criteria for determining incremental pay progression. In particular it is worth noting that Principle (iv) states: all those staff demonstrating and applying the required levels of performance and delivery consistently during the performance review period will benefit from incremental pay progression. (emphasis added) Further, Principle (v) states: in assessing an individual s performance, an organisation may consider not just whether the objectives have been achieved (or not) but also how they are achieved. (emphasis added) Both these principles, we believe, provide local employers with the flexibility to seek to include attendance as a criteria in relation to incremental pay progression, on the basis that those staff with poor attendance records, whilst they may attain their objectives or the
16 required level of performance during the review period, may not do so consistently (Principle (iv)) or may cause difficulties for the employer as a result of poor attendance levels (Principle (v)). If you do choose to use attendance as a criterion, and the local unions are agreeable to this, it will still be necessary to exercise some caution on implementation. In particular, it will always be important to bear in mind the effect of the Equality Act 2010 and the protections afforded by the Act to workers who are satisfy the statutory definition of disability. We would suggest that just as you would consider making reasonable adjustments to a disabled employee s attendance record when scoring them for the purpose of a redundancy selection procedure, likewise it may be necessary to consider reasonable adjustments to your criteria for incremental pay progression where a disabled employee may be placed at a substantial disadvantage as a result of the attendance criteria. Managing Doctors I am dealing with allegations which are a mixture of conduct and capability. I have heard that in some circumstances I can separate the conduct issues and proceed to hear those. What are the circumstances in which I can do this? What are the challenges I am likely to face if I separate conduct from capability? Where the conduct is so serious that it may necessitate the consideration of the conduct issues separately from capability (ie serious probity cases). See Hussain v Surrey & Sussex. Potential threats of injunction.
17 Handling Disciplinaries What are our obligations to allow an employee to be represented by their representative of choice, particularly where that rep has limited availability? An employee has the right to postpone the hearing once for up to five working days, but should the chosen companion still not be available within that timescale, the employer is entitled to request that the hearing proceed, with an alternative companion. Further Detail: Under sections 10 to 15 of the Employment Relations Act 1999, workers and employees have a statutory right to be accompanied by a trade union representative or a fellow worker at a disciplinary hearing. For these purposes a disciplinary hearing is a hearing that could result in: a formal warning being issued to a worker; the taking of some other disciplinary action, such as suspension without pay, demotion or dismissal; or the confirmation of a warning or some other disciplinary action (e.g. an appeal hearing). (section 13(4) Employment Relations Act 1999). The companion should be someone who is either an official employed by the trade union of which they are an official; any other official of a trade union where the union has reasonably certified the official as having appropriate experience or training; or another of the employer s workers. N.B. As there is a separate section of questions on doctors, the right to legal representation is assumed to be beyond the scope of this answer, but the principles in relation to postponement in the event of the unavailability of the companion apply equally when the legal representative is unable. Where the employee s chosen companion is unavailable at the time proposed for the hearing by the employer, the employee has the right to suggest an alternative time which is not more than five working days later. The alternative date suggested must also be reasonable. (sections 10(4) and (5), Employment Relations Act 1999) It is unclear in this context what would be reasonable, but a date proposed by the employee
18 would presumably not be reasonable if the employer s key personnel are unavailable at that time. It is also worth noting that the right to be accompanied only applies where the worker has reasonably requested to be accompanied. The ACAS Code of Practice on Disciplinary and Grievance Procedures gives some guidance as to when a request would not be reasonable in these circumstances. It suggests that it would not be reasonable for workers to insist on being accompanied by a companion whose presence would prejudice the hearing, nor would it be reasonable for a worker to ask to be accompanied by a companion from a remote geographical location if someone suitable and willing was available on site. Is the failure to suspend an employee, who is the subject of a disciplinary investigation, inconsistent with a subsequent dismissal as a result of that investigation? No, not necessarily. Suspension is a serious step and careful thought should be given in each specific factual circumstance as to whether suspension is appropriate, even where dismissal may be a subsequent sanction. Further Detail - In instances of serious misconduct, an employer may wish to suspend the employee who is being investigated. This may be appropriate, for example, where there is a potential threat to the organisation or other employees, or if it is not possible to properly investigate the allegation if the employee remains at work (for example because they may destroy evidence or attempt to influence witnesses). It may also be appropriate to suspend where relationships at work have broken down. However, in such cases each individual is likely to have their own view of who is to blame and the employer should be careful not to give the impression of having pre-judged this issue. An alternative to suspension is redeployment. Redeployment may be with restricted activities. However, any employer who does redeploy an employee should ensure that the redeployment is kept under review and is managed carefully. The employer should make sure that the employee is not ostracised and is kept informed of the progress of the investigation and the likely period of redeployment.
19 Where an employer does not give careful consideration as to the appropriateness of suspension and carries out a knee-jerk suspension, then such action may be a breach of mutual trust and confidence by the employer. This is even the case where the police have become involved in a matter (Crawford and another v Suffolk Mental Health Partnership NHS Trust  IILR 402 (CA)). I have an employee due to attend a disciplinary hearing. They say that they are too stressed to do so. Can I proceed in their absence? Ultimately, unless alternative arrangements can be reached, the need for a timely resolution of disciplinary matters may compel the employer to hold the disciplinary in the employee s absence and make a decision on the basis of all the evidence available, but such a decision should only be taken after obtaining medical evidence and giving strong consideration to postponement and other ways for the employee to be represented at the hearing. Further Detail - It is a common problem for employees, on being told to attend a disciplinary hearing, to absent themselves by reason of ill health, frequently citing stress as the cause. The employer is then caught in the middle, on the one hand wanting to ensure that matters are dealt with speedily, particularly if it is a serious case where other employees interests are involved, but on the other hand the employee may genuinely not be well enough to attend the hearing and the employer will want to ensure as fair a process as possible, particularly where the outcome may be the dismissal of the employee. An employer should proceed cautiously in the event of an employee saying that they are unfit as a result of stress to attend the hearing. Whilst an employer may believe that the ongoing proceedings are contributing to the employee s stress related condition, and thus should be resolved sooner rather than later, such an assumption should not be made without seeking medical advice. Medical advice can be sought either from the employee s own GP or an independent doctor such as an occupational health physician ( OH ). Whilst an employee may believe that being signed as unfit to work because of stress will allow them to avoid the disciplinary proceedings, the medical view is often different. The Department for Work and Pensions (in their Health and Work Handbook ) notes the effect of
20 an unresolved dispute on the employee s mental health may be great if the proceedings are postponed. It also rightly notes that an employee may be unfit for work, but still fit to engage with the management process. OH are likely to recommend a postponement if (i) the patient has severe depression, or has only recently started taking anti-depressants, (ii) the employee does not have the ability to understand the allegations made against them, (iii) the employee cannot distinguish right from wrong (iv) the employee is not able to instruct a friend or representative to represent their interests or (v) if the employee does not have the ability to understand and follow the proceedings. In most cases of stress, OH is likely to recommend proceeding with the disciplinary because these circumstances do not exist. However, it is important that the employer has a documented record of OH, or other medical, advice to this effect, and does not assume that it is appropriate to proceed. If a disciplinary hearing is postponed on medical advice, then there will of course come the point at which no further delay can be withstood. This may be because the ill employee is not the only individual with an interest in the matter being resolved or because memories of witnesses may fade with time. In such circumstances the employer has to take a decision whether and how to proceed. In most cases it would be inappropriate simply to let matters drop in the interests of rehabilitating the employee, although this may be a decision taken in a minor case. If the matter is not to be dropped, then consideration is to be given to alternative ways of conducting the disciplinary hearing, such as by telephone, at a neutral place or location or even inviting the employee to submit written submissions and holding the hearing in their absence. If the employee does wish to attend a hearing, consideration may be given by the employer to agree to the employee bringing a friend or family member, rather than restricting them to a colleague or trade union representative.
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