James Brindley School Single Status - Equal Pay Grievance Policy

Transcription

1 James Brindley School Single Status - Grievance Policy 1 INTRODUCTION 1.1 Some schools have received either Grievances or Employment tribunal claims or both. Some no-win, no-fee solicitors are attempting to circulate information in schools or come onto school property to ask staff to put in claims. We strongly urge schools not to circulate any of these leaflets and ask any such solicitor to leave the school site. 1.2 EBriefing 4 and EBriefing 31 have previously given advice on how to deal with Equal Pay grievances. This EBriefing provides an update following changes in legislation and caselaw. 1.3 With effect from 4 October 2009, the Statutory Grievance Procedure was withdrawn. This EBriefing therefore draws together previous guidance to establish a specifically designed procedure for schools to be used in relation to equal pay grievances. 1.4 An updated recommended Grievance Procedure is attached at Appendix A. Governing Bodies have previously followed the guidance set out in EBriefings 4 and 31 but we have made some important changes. It is recommended that all Governing Bodies adopt the revised procedure at the earliest possible opportunity (using the delegated powers of the Governing Body if necessary). This is particularly urgent for schools currently dealing with outstanding equal pay grievances. 1.5 In addition to the procedures outlined in Appendix A, the following pages provide detailed explanatory notes for those schools dealing with outstanding equal pay claims/grievances. Appendices B to H provide template letters which can be used in most cases and Appendix I includes a flowchart summarising the process. If, after reading this EBriefing, you would like further advice then please contact Amber Bate in the Team. 1.6 You may have seen recent publicity about an Employment Tribunal judgement, the judgement is being considered but at this stage you should continue to hear any equal pay grievances as normal. The legal arguments presented in this document are not affected by the judgement. 1

2 EQUAL PAY GRIEVANCE PROCEDURE EXPLANATORY NOTES 2. Receipt of an Grievance 2.1 Grievances will usually be in the form of a letter from an employee or former employee (provided they left the post within 6 months) or their solicitor or trade union representative. 2.2 Grievances may be addressed to the school and/or to the local authority. 2.3 Where an equal pay grievance is received by the local authority, provided the claim is valid and the details are verified, the Team will send the grievance to the school to be heard in accordance with the adopted procedure. 2.4 Where an equal pay grievance is received by the school or Governing Body, it is essential that the school contacts Amber Bate in the Team for further advice before continuing under the adopted procedure. 2.5 A flowchart summarising the process is attached at Appendix I. 3. Conducting Grievance Hearings 3.1 The attached Grievance Procedure, which is recommended to be adopted by all schools, requires an initial hearing with the Head Teacher with subsequent appeals to the Chair of Governors and the Appeals Committee. 3.2 It is important that you retain notes of all meetings. 3.3 A structure for hearings is provided in Appendix G. This can be used at appeals or can be adapted for use at initial meetings with Head Teachers. 3.4 The purpose of any grievance hearing is to attempt to resolve the grievance. However, with equal pay grievances, your employees are asking you to resolve the difference between their salary levels and that of a comparator that may not be employed at the school and in almost all case, it will not be possible to resolve this grievance. 3.5 Once the employee or their representative has had the opportunity to present their case, if the grievance is based on comparators employed outside of the school, then the Head Teacher should explain that they are unable to uphold the grievance on the basis that individual Governing Bodies, in accordance with the Schools Staffing (England) Regulations 2003, have discretion on the level of salary attached to support staff positions within their school but do not have any authority over the salary levels of City Council Staff. 2

3 If a comparator is cited within the school, it is important that you seek advice from the Team immediately. (Please note that if a comparator is cited within the school, such grievances/claims would not necessarily be successful as there are still a number of other factors that would need to be considered.) 3.6 For Voluntary Aided Schools Governing Bodies in each school are the employers in law and choose the level of salary for support staff positions. Therefore whilst we may have received equal pay claims for staff within these schools, we will attempt to challenge them at the Employment Tribunal. Previous cases at the Employment Tribunal have confirmed that the Governing Body is the employer for staff employed in voluntary aided schools and it is therefore very unlikely that such claims will be successful, however, in the meantime, it is important that you conduct the grievance hearing. 3.7 Trust and Foundation Schools- Governors in each school are the employers in law and choose the level of salary for support staff positions. There are outstanding legal challenges which we will challenge at an Employment Tribunal. However, even though the position in Foundation schools is legally more uncertain, the grievance still needs to be heard. 3.8 Provided that no comparators are cited within the school, the Head Teacher will send the letter in Appendix C following the hearing to confirm that they are unable to uphold the grievance. 3.9 If no written appeal is received within the prescribed time period then the process will be complete and all paperwork should be forwarded to Amber Bate in the Team. 4. Non attendance at grievance hearings 4.1 If the employee fails to attend the grievance hearing then please send the letter in Appendix D to offer them another opportunity to attend and to explain the consequences of not following the procedure. 4.2 In some instances, employees or Trade Unions may claim that they are relieved of the need to attend the hearings under the Employment Act 2002 (Dispute Resolution) Regulations These Regulations have now been repealed (see paragraph 6 below). Please contact Amber Bate in the Team immediately for further advice. 3

4 5. Appeals procedure 5.1 Where the employee appeals against the Head Teacher s decision, the Head Teacher must write to the Chair of Governors to review the outcome of the hearing. For expediency, the procedure allows the Chair to consider the appeal together with the Head Teacher s report and may confirm the decision in writing. If so and provided no comparators are cited within the school, the Chair then sends the letter in Appendix E to confirm that they are unable to uphold the appeal. 5.2 If the employee appeals against the decision of the Chair of Governors, the employee and their representative will be invited to attend an Appeals Committee meeting using the invitation letter in Appendix F. A structure for the hearing is provided in Appendix G and the template letter in Appendix H should then be sent to confirm the outcome of the hearing. 6. Collective Grievances 6.1 Many of you will have received equal pay grievances that list a number of employees with the same job role in a single collective grievance. In the past, collective grievances submitted by GMB or Unison have often quoted Regulation 9 of the Employment Act 2002 (Dispute Resolution) Regulations 2004 and stated that the Trade Unions are relieved of the need to take further steps under the Statutory Grievance Procedure. However the above Regulations were repealed with effect from 4 October Collective Grievances submitted before 4 October 2009 may still quote Regulation 9. If you have received any such grievances then please notify Amber Bate in the Team as soon as possible. It is important that each individual claim listed on the grievance is investigated by the Team to ensure that a valid collective grievance has been submitted under Regulation 9. You will then be advised whether any further action is required. 6.3 Collective grievances submitted after 4 October 2009 should no longer quote the repealed Regulations, however it is possible that you may still receive some that do. Whenever you receive grievances, collective or otherwise, or if you receive any letters quoting Regulation 9, it is important that you notify Amber Bate in the Team for advice before taking any further action. 6.4 If the Team finds that Regulation 9 does not apply (because it was submitted after 4 October 2009 or other reason) then it may be necessary to provide you with a template letter that clarifies this issue. 6.5 Collective Grievance Hearings: If you are advised by the Team to arrange grievance hearings in respect of more than one employee at the school and the employees: 4

5 have submitted a grievance in respect of the same job role; and are represented by the same Trade Union It may be possible to deal with those grievances in a collective grievance hearing. Please amend the letter in Appendix B, stating that you have arranged a meeting to hear the grievances collectively and ask the individual (or Trade Union) to notify you if they would prefer you to schedule an individual hearing. 7. Employees represented by Solicitors or Trade Unions 7.1 If the employee is represented by a Solicitor, then please ensure that all letters are addressed directly to the Solicitor and not the employee, although copies of the letter can be sent to the employee for their information. 7.2 Where the employee is represented by a Trade Union, letters can be addressed directly to the employee however it is good practice to forward copies of all correspondence to the Union. 8. Completed paperwork Once the grievance process has been completed, please forward copies of all paperwork, including any letters and minutes of meetings, to Amber Bate in the Equal Pay Team. A checklist of the paperwork to be returned will already have been sent to you. 9. Employment Tribunal Applications If you receive an Employment Tribunal Application (ET1) in relation to, please forward it immediately to Pauline Holland, Team, Ingleby House, Cannon Street, Birmingham B2 5EN. The Team have agreed to coordinate all equal pay employment tribunal applications and a member of our team will contact you if/when further action by yourselves is needed. 10. Settlements Settlements are still being offered on a 'without prejudice basis' to certain groups of staff. However, we are statutorily barred from making such offers direct to individual claimants if they are represented by a solicitor or a Trade Union. Any offers will be made via their Trade Union or legal representative. If a represented employee approaches you and asks why they have not been offered a settlement, then please refer them to their Solicitor or Trade Union representative. 11. Withdrawals If a represented employee indicates to you that they wish to withdraw their grievance/claim then please refer them to their Solicitor or Trade Union representative. If, after discussing the matter with their representative, they decide 5

6 they do want to withdraw, then we will require written confirmation from their representative that the grievance/claim has been officially withdrawn. If an employee who is not represented wishes to withdraw their grievance/claim then they will need to put this is writing. Please ensure that you do not encourage any employee to withdraw their claim. Please note that if any employee states they do not wish to proceed it is important to distinguish between not wishing to proceed with the grievance procedure and wishing to withdraw the grievance/claim altogether. It may be that the employee does not wish to co-operate with the procedure but may continue to pursue the claim. If this is the case then it may be appropriate to adapt the non-compliance letter in Appendix D. Please contact Amber Bate in the Team for further advice. 12. Legal Timescales The ACAS Code of Practice for Disciplinary and Grievance Procedures states that employers must raise and deal with issues promptly and should not unreasonably delay meetings, decisions or confirmation of those decisions. Failure to comply with the provisions of the Code of Practice, or to adhere to the appropriate procedures, could affect any award made at Tribunal by up to 25% uplift for either party, so it is important for both sides to follow the process. We recommend that all schools adopt the procedure in Appendix A at the earliest possible opportunity to ensure that Grievances can be dealt with quickly and efficiently. Only arrange hearings for those who have raised grievances. If a member of staff has completed an ET1 form and sent it to the Employment Tribunal without first submitting a grievance, it should not be heard. 6

7 APPENDIX A: EQUAL PAY GRIEVANCE PROCEDURE ADOPTED BY THE GOVERNING BODY OF JAMES BRINDLEY SCHOOL 1. Introduction The following procedures were adopted by the Governing Body on 15 th December The procedures will apply to specifically and exclusively to related grievances raised by staff employed within the school. Grievances that do not relate to are covered by separate procedures. 2 Stage 1: Grievance Hearing 2.1 Where an employee has submitted a written equal pay grievance, the Head Teacher will invite the employee to a hearing to discuss the grievance. The employee should be given reasonable notice of the date, time and venue of the hearing and the employee may be accompanied by a friend or representative. 2.2 The Head Teacher will present the case of management. The employee or their Trade Union representative will be given an opportunity to present their case. 2.3 The Head Teacher will sum up the case and remind the employee of their right to appeal to the Chair of Governors if they are dissatisfied with the decision. 2.4 The Head Teacher will then inform the employee in writing, without unreasonable delay, of the outcome of the hearing and the right of appeal 2.5 The employee will be required to submit any appeals in writing within 10 school working days of being notified in writing of the decision against which the appeal is lodged. 3 Stage 2: Chair of Governors 3.1 If the employee confirms in writing within the prescribed time period that they wish to appeal the Head Teacher s decision, then the Chair of Governors should be provided with a copy of the grievance together with the appeal and a written report from the Head Teacher confirming the outcome of the hearing. 3.2 The Chair of Governors will consider the information provided and will inform the employee in writing, without unreasonable delay, of their decision and the employee s right of appeal to the Appeals Committee of the Governing Body. 7

8 4 Stage 3: Appeal Committee 4.1 If the employee confirms in writing within the prescribed time period that they wish to appeal against the decision of the Chair of Governors, then the employee will be invited to attend a meeting of the Appeal Committee of the Governing Body. The employee should be given reasonable notice of the date, time and venue of the appeal hearing and their right to be accompanied by a friend or representative. 4.2 The employee will be invited to present the reasons for the appeal and the Head Teacher will to present the case of management. 4.3 The Chair of the Appeals Committee will then write to the employee, without unreasonable delay to confirm the outcome of the appeal. 8

9 APPENDIX B: Invitation to grievance hearing If individual is represented by a solicitor, please adapt letter and write to solicitor (see paragraph 7 above) (Date) (Name & Address) Dear Grievance You have registered an equal pay grievance dated (date). In accordance with the school s procedure for equal pay grievances, it is necessary to arrange a hearing to listen to your grievance. The purpose of the hearing will be to listen to the reasons why you consider that you have an equal pay grievance and to respond on behalf of the school. The hearing will be conducted by [name of Head Teacher] and you may be accompanied by a friend or Trade Union representative. The hearing will take place at [time] on [date]. The venue for the hearing is [venue]. If there are any papers you wish to submit as part of your grievance then you should send them to me at the school before the date of the hearing. I should be grateful if you would confirm that you are able to attend at the time, date and venue specified and whether you will be accompanied. Please confirm within five days of receiving this letter that this date and time is convenient or if you need alternative arrangements to be made. If I do not hear from you by then, I will assume that you do not wish to attend and will then cancel the hearing. Yours sincerely Head Teacher 9

10 APPENDIX C: Outcome Letter If individual is represented by a solicitor, please adapt letter and write to solicitor (see paragraph 7 above). (Date) (Name & Address) Dear [name of claimant] Grievance Thank you for meeting with me on [date] in relation to your claim for equal pay with City Council Staff. As I explained at the meeting, the Governing Body of this school, in accordance with its responsibilities under the School Staffing (England) Regulations 2003, decide the salary of staff employed at the school but do not have any authority over the salary levels of corporate City Council Staff. As a result of the fact that your grievance relates to an claim using comparators outside of this school, I am noting your grievance but not upholding it at this time. You have the right to appeal if you do not agree with this decision. If you wish to appeal you should write to me within 10 school working days of receiving this letter setting out your reasons for the appeal and stating whether you wish to make your appeal in person or in writing. Yours sincerely Head Teacher 10

11 APPENDIX D: Non compliance letter If individual is represented by a solicitor, please adapt letter and write to solicitor (see paragraph 7 above). Date: Name & Address Dear Grievance, (Job Title) I note that you did not attend the Grievance hearing on XXX of which I notified you in my earlier letter. I received no request from you for the hearing to be re-arranged/ I received a request explaining that you wish for the hearing to be re-arranged (Delete as appropriate). We have made arrangements for another hearing to take place on XXX at XXX. Please confirm within five days of receiving this letter that this date and time is convenient or if you need alternative arrangements to be made. If I do not hear from you by then, I will assume that you do not wish to attend and will then cancel the hearing. However, you should be aware that should you fail to participate in the grievance procedure we reserve the right to draw this issue to the attention of the Employment Tribunal. The Employment Tribunal may draw inferences to this which may result in any compensation being reduced. Yours sincerely Head Teacher. 11

12 APPENDIX E: Appeal Letter If individual is represented by a solicitor, please adapt letter and write to solicitor (see paragraph 7 above). Date Name & Address Dear Grievance Following receipt of your appeal against the Head Teacher s decision not to uphold your Grievance, I considered your reasons for appeal together with the Head Teachers report. After giving this matter due consideration I find I am unable to uphold your Grievance. The decision is based on the fact that your grievance is related to an claim using comparators outside this school and I am therefore noting your grievance but not upholding it at this time. You have the right to appeal to the Appeal Panel of the Governing Body if you do not agree with this decision. If you wish to appeal you should write to me within 10 school working days of having received this letter. Yours sincerely [name] Chair of Governors 12

13 APPENDIX F: Invitation to Appeal Hearing If individual is represented by a solicitor, please adapt letter and write to solicitor (see paragraph 6 above). (Date) (Address) Dear Grievance I note that you wish to appeal against the decision of [name], Chair of Governors in respect of your Grievance. The appeal process of the Grievance Procedure requires the Governing Body s Appeals Panel to meet to hear your appeal. The Appeal Panel will consist of 3 governors not previously involved with your grievance [list names of Governors]. [Name of Head Teacher] will also be invited to attend the meeting in order to present [his/her] case. You may be accompanied by a friend or Trade Union representative. I can confirm that the hearing will take place at [time] on [date]. The venue for the hearing is [venue]. I should be grateful if you would confirm that you are able to attend at the time, date and venue specified and whether or not you will be accompanied. Please confirm within five days of receiving this letter that this date and time is convenient or if you need alternative arrangements to be made. If I do not hear from you by then, I will assume that you do not wish to attend and will then cancel the hearing. Yours sincerely [name] Clerk to the Governors 13

14 APPENDIX G: Structure for Grievance/Appeals Hearing The structure can also be adapted for use at hearings with Head Teachers. Please ensure that written notes are kept of all hearings. 1) The Employee and his/her representative and the Head Teacher shall attend the meeting simultaneously to present their cases. 2) The Chairperson will perform the necessary introductions. 3) The Head Teacher will describe the policy of the governing body and present the management case.. 4) The Employee and his/her representative may question the Head Teacher. 5) The members of the committee may question the Head Teacher. 6) The Employee and his/her representative will present his/her case.. 7) The Head Teacher may question the Employee and his/her representative. 8) The members of the committee may question the employee and his/her representative. 9) The Head Teacher will sum up his/her case (no new evidence shall be introduced at this stage). 10) The Employee and/or his/her representative will sum up their case (no new evidence shall be introduced at this stage). 11) The Head Teacher and the Employee and his/her representative will withdraw. The committee will consider the material and evidence presented at the hearing, decide the outcome and notify its decision in writing to the appellant, normally within seven working days of the hearing. This procedure may be varied by the Committee to ensure fairness including possible witnesses, circulation of documentation, etc. 14

15 APPENDIX H: Appeal Outcome Letter If individual is represented by a solicitor, please adapt letter and write to solicitor (see paragraph 7 above). (Date) (Name & Address) Dear Grievance Thank you for attending the Appeals Panel hearing of your Grievance on [date]. I write to confirm the decision of the panel. Regrettably the Appeals Panel finds it is unable to uphold your Grievance. Their decision is based on the fact that your grievance is related to an claim using comparators outside this school. Yours sincerely Clerk to Governors 15

16 APPENDIX I - FLOWCHART GMB Stefan Cross / Unison / Carvers Independent claim Grievance submitted to school and/or BCC Grievance submitted to BCC Grievance submitted to school and/or BCC Team checks, logs and validates Team checks, logs and validates School send copy of grievance to Equal Pay Team Accepts Rejects Accepts Team contacts school to advise on further action Is it a collective grievance quoting Regulation 9? Yes Team will advise on whether further action is required Team writes to GMB to reject claim No Team will advise on hearing grievance After school grievance process, School forwards copies of all paperwork to Equal Pay Team Team contacts school to advise on hearing grievance After school grievance process, School forwards copies of all paperwork to Team Rejects Team writes to reject claim Team checks, logs and validates Accepts Team contacts school to advise on hearing grievance After school grievance process, School forwards copies of paperwork to Equal Pay Team Rejects Team writes to reject claim 16

17 CONTACT DETAILS: Amber Bate Team Ingleby House Cannon Street Birmingham B2 5EN Tel: Fax: