August 2018 – Employment Writes

Disciplinary-Procedures Section 10 of the Employment Relations Act 1999 introduced the right of a worker to be accompanied by a trade union official (full time officer or local representative) or fellow employee of the employer. If the right is breached then an employee has a freestanding right to make a claim to an employment tribunal for that breach, although the compensation available for the breach is minimal and often effectively meaningless with the award of ‘nominal’ damages giving an employer an effective free pass if they choose to flout the law and the claim is a freestanding one.

The right to accompaniment by a trade union representative was not created by the 1999 Act and prior to its enactment it was a requisite part of a fair disciplinary process that an employee have the opportunity to be accompanied by a trade union representative if they wished. Even now this expectation is broader and distinct from a narrow focus on the section 10 right, as the relatively decisions in Talon v Smith, Leeds Dental Team Ltd v Rose and Stevens v University of Birmingham demonstrate. I plan to discuss those cases in a later post but I thought a survey, based on my own experience with different employers, the ways in which I have seen or been aware of an employer interfering with a worker’s right to accompaniment may be of interest.

And so, in no particular order the eight ways an employer interferes with an employee’s right of accompaniment:

1. This is just an informal chat

The ACAS Code of Practice explains that the disciplinary “notification should also … advise the employee of their right to be accompanied at the meeting” and it is likely that that would be considered relevant in considering the fairness of a disciplinary process. However, one of the major omissions of the Labour party when introducing the freestanding rights of employees in section 10 was that they failed to introduce a requirement that an employer must also advise the employee of their right to be accompanied; instead, an employee is required to know in a situation where meetings may take place with no notice what their employment rights are.

This is a situation I have seen abused on multiple occasions with managers adopting an ‘under the counter’ disciplinary process. It does not look like a formal disciplinary process, after all formal letters in the HR policy are not used with their five working days notice of hearing, instead there is a ‘brief chat,’ ‘performance discussion’ or the like at which an employee is criticised for some misconduct and told they are on an ‘informal’ warning for a period of time which is recorded on the personnel. When challenged the same managers say this was informal. Secton 13 of the 1999 Act sets out that a disciplinary meeting is a meeting that can result in a “formal warning” or the “taking of some other action in respect of a worker by his employer.” Certainly, the legal position is not completely clear but I find it hard to consider a time limited warning that is recorded is not ‘formal’ whatever terminology an employer chooses it and it is nonetheless likely to be “some other action.” For the employee of course the advise is if in doubt about whether a meeting is a disciplinary meeting make the request to be accompanied explicit to the employer.

2. Deferral on our terms

This issue was for a time a persistent one that prompted me to focus on the issue as my research project on the TUC Diploma in Employment Law. Section 10(4) of the 1999 Act specifies that if a rep is not available and the worker requests an adjournment to postpone for a date within five working days of the hearing then and the alternative time is reasonable then the “employer must postpone the hearing to the time proposed by the worker.” The astute observer will note that it does not say what most HR policies I have seen tend to say, namely that a the hearing should be deferred for up to five days – what this misses is that the employer “must” defer to the time proposed by the worker, not just to a time that is convenient to the employer within five working days.

Frequently, I have been unavailable to attend a meeting a deferral is requested during normal working hours and an alternative time has been proposed but the meeting has been rescheduled to a different time at the manager’s convenience. Mostly this is a good faith, albeit wrong, decision but sometimes I have a suspicion it is a conscious decision when the reorganised meeting just happens to be when I am also unavailable to try to engineer a meeting at which the member will not have their chosen representative present.

The fact is unless the proposed time is unreasonable and in my view following Toal an unreasonable alternative time is difficult to make, especially with a large employer then section 10(4) requires that the meeting must be held at the alternative time proposed by the worker.

3. Sorry, your rep is not going to be Paid / is not going to be given time off

Most disciplinary accompaniment in disciplinary and grievance hearings is done by a fellow worker who is also a trade union representative- who has their own job to do for the employer. This means if a rep is to attend a meeting they will need to be given time off by the employer to attend. Section 10(6) of the Employment Relations Act 1999 envisaged this scenario which is why it provides that “An employer shall permit a worker to take time off during working hours for the purpose of accompanying another of the employer’s workers” and section 10(7) also makes reference to section 169(1)the Trade Union and Labour Relations (Consolidated) Act 1992 which requires that any time off for must be paid.

Generally this is likely to occur when an employer refuses to allow a person time off to attend a meeting but in my case the situation was slightly different. I requested time off to attend a manager granted this but told me the employer would not pay me (not the first time they had said this). This ended up being subject to employment tribunal proceedings for breaching section 10. I still do not understand why but the employer defended the case – in the end after a hearing the employer was found to have breached the law on right to accompaniment.

4. Right to have one’s hand held, Or, silencing the right.

At a time I was working for the an employer and I was not a union representative I accompanied a fellow worker in a disciplinary meeting. Both in letters and at the start of the meeting the company HR Advisor ‘explained’ to me that the role of the companion was to provide ‘moral support’ to the worker and that I really should not need to say anything.

In the event I had brought with me a copy of the ACAS Code of Practice and was able, in response, to explain – as she most surely knew already – that, as the Code of Practice puts it, the “companion should be allowed to address the hearing to put and sum up the worker’s case, respond on behalf of the worker to any views expressed at the meeting and confer with the worker during the hearing.” The HR advisor backed down (if I recall rightly with a ‘it was all a misunderstanding’ tact) and the meeting proceeded which the result that no warning was given.

Certainly a companion often does give ‘moral support’ but their role can be much broader than that, including putting forward (with the employee’s consent) arguments why a warning should not be given or why a grievance should be upheld.

5. Get a rep and you’ll get a warning

It is common a common experience that a member reports that their manager has spoken to them about an upcoming hearing with a ‘i’m only looking out for your interests’ tone suggesting that bringing a rep to a meeting with them would be unhelpful to their case. That is an astonishingly common scenario.

Sometimes however, an employer may ‘up the ante’ and suggest that if a rep is enlisted then it is more likely that the outcome will be harsher than it would otherwise be, perhaps the difference between a final written warning or dismissal. Any detriment or dismissal for exercising a right to accompaniment is of course unlawful (section 12(1) of the 1999 Act) although, such a case is often difficult to prove.

6. Threaten to refuse time off

On paper the job description of an ’employment relations manager’ will have references to developing constructive working relationships with trade unions and similar. No doubt, many HR and employee relations do conduct themselves with professionalism but the exceptions are more common than one would like to believe. One such instance was in the context of an ongoing dispute between the union and senior managers – after making negative changes without union agreement the employer was put out when this was not accepted without dispute and the union did not ‘play ball.’

And so in a fit of pique a senior employee relations manager made a threat to every rep that if they did not drop their opposition all facility time requests would henceforth be refused. I have already discussed how a union rep ‘must’ be granted time off if a worker makes a request for union accompaniment. But what about a threat, even if not followed through? Section 11(1) of the Act, which concerns enforcement of the section 10 makes clear a worker can bring a case on the basis that an employer “threatened to fail” to meet their obligations. So, the simple act of threatening to refuse to allow a worker to be accompanied, or allow a rep time off to accompany the worker, may be unlawful.

7. We don’t recognise you
Section 10(3) of the 1999 Act lists three categories of person who can if there is a valid request accompany a worker to a meeting (the employer can voluntarily expand this list). The three categories are i) a fellow employee of the employer, ii) a trade union official (someone employed by the trade union), iii) a trade union representative (usually elected by members). Two things are clear from this list. First, that a worker does not have to be a trade union member to be accompanied by a trade union representative. Second, that the employer does not have a choice as to which trade union will assist a worker.

In an employer where there is a main trade union and a smaller union presence, perhaps with only one union being recognised by the employer for collective bargaining an employer can sometimes refuse a meeting a representative permission to attend if they are not used to dealing with them. This is in some ways an understandable response but it is one I have encountered on more than one occasion.

8. Any rep but that one!

Along similar lines is the last example, when an employer refuses to allow a particular rep to attend – for example because they work in the same unit as the worker, are otherwise involved, or even because they are a good rep and the employer would prefer another rep to be involved (they’d normally come up with a better sounding reason!).

This was the subject of an important Employment Appeal Tribunal decision in Toal v GB Oils Ltd. The facts were that a worker requested a particular rep to attend a meeting with him but the employer refused permission, instead allowing a different rep to attend. This was found to be a breach of the worker’s right to accompaniment because, as the ACAS Code puts it, the right relates to a worker’s “chosen companion” not just chosen union.

adult anger angry angry face I have written before about ‘heat of the moment’ resignations. The recent decision in Walker Smith v Perrys Motor Sales offers a good opportunity to look at this again, although I do not plan to look at the actual decision in Walker Smith in any great detail

The general position in the employment contract is that a resignation cannot be withdrawn or retracted, unless all parties agree to this. Although it seems counterintuitive the real question is whether there was a resignation at all? Does the fact an employee says to their employer “I Quit” or writes that a letter saying “I Resign” mean that that is really what happened? To address situations where an employee makes a rash statement that they quit but then rethink their position employment law has recognised that this may not, properly speaking, be an effective resignation. And, where this happens and the employer nonetheless considers them still refuses to consider them employed then this response by the employer amounts to a decision to dismiss. The status of such a ‘heat of the moment’ non-resignation ‘resignation’ is explored in Martin v Yeomen Aggregates Ltd:

I would, however, be reluctant to characterise the exception as an opportunity for a unilateral retraction or withdrawal of a notice of resignation or dismissal since that would be to allow the exception to operate inconsistently with the principle that such a notice cannot be unilaterally retracted or withdrawn. In my judgement, the true nature of the exception is rather that it is one in which the giver of the notice is afforded the opportunity to satisfy the recipient that he never intended to give it in the first place – that, in effect, his mind was not in tune with his words.

In short, employment law has recognised a kind of legal fiction – where a person unambiguously says they resign but this is in the heat of the moment and is promptly retracted this may actually mean there was no resignation at all, even if this is made without notice.

This brings us to the case of Walker Smith. The important facts in the case are that the claimant was a longstanding employee who on 4 June attended a disciplinary investigation meeting and, after this, was invited to a disciplinary hearing on 8 June. In response to this decision Mr Walker Smith wrote resigning his employment but also confirming that he would work his notice period of 3 months. It appears that Mr Walker Smith thought that, by resigning, the employer would not hold the disciplinary meeting, but that was not to be. The hearing on the 8th was held and on the 13th of June Mr Walker Smith was dismissed, having had a proven case of gross misconduct made against him. He was summarily dismissed on that date (and so never got the chance to work his notice period).

I think the factual scenario is a good one to consider three issues:

Can a resignation be retracted?
Is resigning with notice a way to avoid disciplinary proceedings
What if the employee breaches the contract and resigns without notice.

Can a resignation be retracted?

As was the case for Mr Walker Smith when faced with a notice of an imminent possible dismissal, or some other unwelcome decision of an employer it is a common response for an employee to want to resign. It is certainly not unknown for an employee in a pique of anger at the employer’s decision to respond by resigning, only to regret that later.

As set out above, and in my earlier post, the basic position appears to be that if the resignation was not properly thought through and was made in haste then, if an employee then promptly retracts that decision then there is no resignation – and the contract of employment is either revived or the employee is dismissed (with the possibility of the employee claiming unfair dismissal).

However, the employee needs to act quickly. In Mr Walker Smith’s case it noted that even if the resignation was in the heat of the moment (the Appeal Tribunal was not convinced) the resignation was retracted a full 12 days later – in these circumstances the resignation must be treated as effective.

Is resigning with notice a way to avoid disciplinary proceedings?

One of the more interesting arguments I have had with a HR adviser for an employer arose out of just this situation. An employee resigned in response to a disciplinary proceeding against her (against my advice) and worked her notice but the employer could not complete the investigation before the end of the notice period when she left employment. Unbeknown to me or the employee the investigation continued and in due course some weeks later a letter was sent to the employee explaining she had to attend a disciplinary hearing where she may be dismissed. How, I asked (with as straight a face as I could muster,) did the employer think it could dismiss an employee who no longer worked for them and had fully complied with her contract. Remarkably, the HR adviser did not really see the problem and asserted a dismissal was still possible. In the event, a senior manager did what I often recommend they do, ignore the advice they receive and apply some common sense.

Mr Walker Smith evidently thought that resigning employment would avoid the disciplinary proceedings. In his case this was not successful. If an employee is working their notice then for that period they are subject to the contract of employment and the disciplinary proceeding can continue; if there is sufficient time in the notice period for the whole process to run its course then an employer can (if they have reasonable ground) dismiss for gross misconduct and this has the effect of overriding the resignation. However, if under the contract the notice period is short then a resignation may well have the effect of ensuring an employer is unable to complete a disciplinary process.

The benefit if this happens is that there is no formal proven finding of misconduct or sanction applied and so any subsequent employment reference should not make any reference to any proven misconduct, although an employer may legitimately explain that their employment ended while there was an unresolved disciplinary action being progressed against them.

As a general rule however, while a well timed resignation might help an employee avoid a disciplinary hearing it is not something I recommend. By doing so an employee avoids the opportunity to put their side of the case, appeal against any disciplinary decision and mean they were not dismissed and so have their opportunity to challenge any disciplinary proceedings severely curtailed, if not completely removed.

What if the employee breaches the contract and resigns without notice?

Where a notice period is worked any disciplinary proceeding an proceed during that period. If an employee such wants to avoid the disciplinary hearing completely then they can resign immediately and not work notice. Sometimes if the disciplinary procedure is unfounded then a constructive dismissal claim may be made. More commonly however, they simply leave employment. If an employee does this then they will almost certainly have broken their contract of employment and the employer could (but unless large figures are involved probably won’t) sue the employee for breach of contract to recover the costs arising from the breach. I say almost as I recall one case in which by a quirk of contract a persons over a certain age could resign with no notice under contract and so the day before a misconduct hearing at which the employee would certainly be summarily dismissed the employee resigned and so avoided the dismissal (I am not sure this is healthy but I took some satisfaction from that, especially as the employee was also prosecuted for the same offence).

In practice, notwithstanding the erstwhile HR adviser’s delusions, a resignation without notice will mean an employee is recorded as resigned rather than dismissed and many employers, knowing that an unfair dismissal claim from such a situation is very unlikely, will be happy with this. An employer may however, still be minded to make reference to this in any references, especially if the alleged offence is one of dishonesty or they are employed in a regulated profession.

Month: August 2018

Eight Ways Employers Interfere with the Right to Accompaniment

Resignations and Disciplinary Allegations