Chapter 3 - The Role of Policy and Procedure in the Employment Context

Question 1

What is the importance of having policies and procedures in place?

Answer 1

1. Prevent disputes from arising, and if they do arise, can help to resolve them without involving legal professionals.
2. Allow for consistency.
3. Ensures employers are compliant with current employment law.

Question 2

How do employers implement policies?

Answer 2

1. Make them contractual by incorporating them into employment contracts.
2. Can use them as additional guidance.

Once implemented - staff must be made aware of the policies through training.

Liberty Living plc v Reid [2011]

Question 3

What is the difference between disciplinary and grievance issues?

Answer 3

Disciplinary issues - with an employees work, conduct or absence.

Grievance issues - problems and concerns the employee has with the employer.

Question 4

What does s3 ERA 1996 state?

Answer 4

Employers are under a duty to provide their employees with details of any workplace disciplinary or grievance procedures and disciplinary rules.

Question 5

Key reasons for having a disciplinary policy

Answer 5

1. to ensure all employees are treated consistently and fairly if there are disciplinary issues
2. to communicate to employees what is considered to be acceptable behavior
3. to deal with situations where employees break the rules
4. to deal with situations where employees under perform

Question 6

What is the ACAS Code?

Answer 6

Provides guidance on disciplinary and grievance procedures and their content.

It is split into guidance on disciplinary and grievance matters.

Question 7

What are the 5 elements of fairness set out in the ACAS Code?

Answer 7

1. Matters should be raised and dealt with promptly
2. Parties should act consistently
3. Employers should carry out the necessary investigations to establish the facts
4. Employers should inform employees of the basis of the problem, and allow the employee to put forward his case
5. Employee should be allowed to be accompanied at any meeting

Question 8

What is the process for disciplinary matters established by the ACAS Code?

Answer 8

1. Establish the facts of the case
2. Inform the employee of the problem
3. Hold a meeting with the employee
4. Allow the employee to be accompanied
5. Decide on appropriate action
6. Provide the employee with a opportunity to appeal

Question 9

What was established in the Holmes v Qinetig Ltd [2016] case regarding the ACAS Code?

Answer 9

The Code only covers misconduct issues, poor performance, disciplinary warnings and grievances.

Question 10

What is the process for grievance matters established by the ACAS Code?

Answer 10

1. The employee should set out in writing the nature of the grievance
2. The employer should hold a meeting with the employee
3. The employer must allow the employee to be accompanied
4. The employer must decide on appropriate action
5. The employer must allow the employee to take the grievance further if the matter isn’t resolved.

Question 11

What is the legal status of the ACAS code?

Answer 11

s.207 Trade Union and Labour Relations (Consolidation) Act states that failure to follow the code in itself doesn’t give rise to a claim.

It is however significant in unfair dismissal cases. the ACAS code is admissible as evidence and any provision deemed relevant in a particular case will be taken into account, Therefore failure to comply with the code could hurt the employers chances of arguing that a dismissal was fair.

Question 12

How can an award be adjusted if either party fails to follow the ACAS code?

Answer 12

If an employee is successful in their claim and it is found that the employer unreasonably failed to follow the ACAS code the court may increase any award to the employee by up to 25%.

If an employee unreasonably fails to comply with the code the court may reduce the award by up to 25%.

The Code does not offer any specific guidance for ETs on this, all it states is that “what is reasonable or justified will depend on all the circumstances of the case” and “employment tribunals will take the size and resources of an employer into account” when determining what steps should have been taken under the Code.

Question 13

What guidance has ACAS produced in relation to the ACAS code?

Answer 13

ACAS has produced a comprehensive guide to handling disciplinary and grievance matters.

Key points in the Guidance are as follows.

1. To reinforce the emphasis on resolving disputes, it includes a brief commentary on how mediations operate and suggestions on when they might be appropriate, for example, for resolving grievances.
2. Sample letters are provided that employers can use as models for dealing with disciplinary and related issues. They include a notice of a disciplinary meeting, a notice of a final written warning and a letter to a worker’s GP to enquire into the cause of a worker’s absence.
3. The Guidance comments that, on a strict interpretation, the right to be accompanied at grievance meetings as set out at s10 EReA 1999 applies only where an employer is dealing with a complaint about a duty owed to the worker which arises from statute or common law (e.g. a contractual right).

The Guidance makes it clear that it is good practice to allow workers to be accompanied by a colleague or trade union representative at all formal grievance meetings.

Question 14

What must an employee do before they can bring a claim to the ET?

Answer 14

They must contact ACAS to inform it of the prospective claim. ACAS will then work with the parties, if they agree, to try to effect a settlement of the dispute without the need to issue proceedings in the ET.

The system is referred to as a mandatory scheme, but it is mandatory only in the sense of having to notify ACAS before an employee begins a tribunal claim – full participation in the scheme is still voluntary. An employee who fails to notify ACAS, however, will be unable to issue proceedings in the ET as a unique Early Conciliation number (issued by ACAS) needs to be included in the claim form ET1

Question 15

What is a disciplinary hearing?

Answer 15

According to s13(4) EReA 1999, a disciplinary hearing is one which could result in one of the following actions being taken:

• the employer gives the employee a formal warning;
• the employer takes some other action in respect of the employee (which may include dismissal); or
• the employer confirms a warning or other action taken.

Question 16

What does ACAS consider to be a disciplinary issue?

Answer 16

ACAS considers disciplinary issues to be those relating to misconduct or poor performance, and notes that it is often best to try to resolve these issues informally first.

Question 17

How to deal with a disciplinary issue.

Answer 17

See table at 3.2.2

Question 18

What should a disciplinary policy include?

Answer 18

1. a statement as to the purpose and key principles of the procedure;
2. the stages in the disciplinary process – informal discussion, first warning, final written warning and dismissal, including suggested timescales for each stage;
3. the employee’s rights in relation to the procedure – for example, the right to be accompanied to a disciplinary meeting;
4. the procedure for matters which amount to gross misconduct and a definition of those matters; and
5. the appeals process.

Question 19

What is a disciplinary warning?

Answer 19

It is used if the allegation doesn’t lead to a dismissal. The approach to disciplinary warnings is not set out in statute, but is dealt with the ACAS Code.

It will be usual for there to be at least three levels of warning:

1. informal warning – this is not meant to be a formal disciplinary warning;
2. written warning – a formal warning that remains on the employee’s record for a specified period of time; the recommendation is that this will be for around six months;
3. final written warning – a formal warning that remains on the employee’s record for a specified period of time; the recommendation is that this will be for around one year.

If the employee repeats the same “offence” during the period that the warning is on record or does not meet the required level of improvement, the next level of warning may be given. When an employee is given a warning there should be a clear explanation of what standards need to be achieved, or what behaviour must not be repeated.

Question 20

What is a grievance hearing?

Answer 20

s13(5) EReA 1999 defines a grievance hearing as a hearing which concerns the performance of a duty by an employer in relation to a worker.

Question 21

What does ACAS consider to be a grievance?

Answer 21

ACAS considers grievances to be complaints, concerns and problems raised by the employee.

Question 22

How to deal with a grievance?

Answer 22

See table at 3.2.4

Question 23

What should a grievance policy include?

Answer 23

A grievance policy may include:

1. a statement as to the purpose and key principles of the procedure;
2. an informal discussion process;
3. the formal procedure for raising a grievance; and
4. the appeals process.

Question 24

What other core policies should an employer have?

Answer 24

1. Equal opportunities policy;
2. Health and Safety policy;
3. Internet and email usage policy;
4. flexible working policy;
5. whistleblowing policy; and
6. sickness absence.

Question 25

Does an employer legally have to have an equal opportunities policy?

Answer 25

There is no specific legal requirement for a private-sector employer to have an equal opportunities policy (EOP) in place; public authorities are required to have equality schemes in relation to age, disability, gender, gender reassignment, pregnancy and maternity, race, religion or belief and sexual orientation.

Question 26

Why have an equal opportunities policy?

Answer 26

A policy supported by effective staff training and monitoring may show that the employer does not allow discriminatory practices within the workplace, and that they have taken reasonable steps to prevent their staff from discriminating against or harassing other employees.

An employer will be liable for the discriminatory acts of its employees (vicarious liability), provided that they occur in the course of employment, and they will only have a defence if they can prove that they have taken such steps as were reasonably practicable to ensure that such discriminatory acts did not take place.

Question 27

Is having an equal opportunities policy enough?

Answer 27

Just having a policy in place is not a sufficient defence against a discrimination claim.

In Martin v Parkam Foods Ltd [2006] homophobic graffiti appeared on walls within the workplace. The organisation had an EOP in place, and it reminded supervisors and managers of the policy. It also posted notices warning that the graffiti was not acceptable and took steps to find out who had written it. The tribunal found that these actions were not sufficient, and that the organisation should have taken more rigorous steps to find out who was responsible for the graffiti.

Question 28

What should be included in an equal opportunities policy?

Answer 28

It is usual for an EOP to include a positive policy statement outlining the employer’s position on unlawful discrimination, and its aims and objectives in terms of achieving and promoting equality of opportunity.

Clear statements should be made in the EOP stating that harassment and bullying are unacceptable.

It should be made clear that behaviour which has the purpose or effect of violating an individual’s dignity can amount to harassment. Hence, the intention of the harasser is not always important.

The conduct does not need to be directed at an individual for it to be considered harassment. (Moonsar v Fiveways Express Transport Ltd [2004] )

It will also be important for the policy to clearly outline the possible sanctions if the policy is breached.

Question 29

Who should have a health and safety policy?

Answer 29

Health and safety in the workplace is regulated by the Health and Safety at Work Act.

All employers with 5 or more employees have a statutory obligation to prepare and keep up to date a written safety policy.

Question 30

What should be in a health and safety policy?

Answer 30

The policy should outline the organisation and arrangements in place for implementing health and safety standards.

Typically, a health and safety policy would contain three main parts.

1. A general statement of commitment – this will outline in broad terms the employer’s overall philosophy in relation to the management of health and safety, and the responsibilities of both management and other staff.
2. A statement of the role, function, responsibility and accountability of the management of health and safety – this will include how the policy will be implemented, details of specific safety responsibilities, the role and function of safety committees, and the chain of accountability in health and safety management.
3. A statement of the practical arrangements for the effective implementation of the policy – this will include safety training, safe systems of work, accident reporting and investigation, fire safety and prevention, maintenance of records, emergency procedures, and workplace monitoring.

Question 31

What should the employer do with the health and safety policy?

Answer 31

1. Inform all employees of its existence; and

2. Keep it up to date

Question 32

Can the health and safety policy be used in evidence?

Answer 32

Yes - in any prosecutions for breach of health and safety regulations, the issue of whether or not an employer has adopted a safety policy may be used in evidence.

Question 33

What legal liability can arise from internet and email use?

Answer 33

1. harassment and discrimination;
2. defamation;
3. disclosure of confidential information and trade secrets;
4. unintentional formation of contracts and breaches of contract;
5. copyright infringement;
6. hacking and the spread of viruses; and
7. employee negligence.

Question 34

Why have an internet and email use policy?

Answer 34

To ensure that employees understand the way in which they should be used in the workplace. This enables both employees and the organisation to gain the maximum value from email and the internet, alerts them to the issues that may arise within the organisation if the technology is misused and explains the consequences of any misuse by employees.

Question 35

What is likely to be included in the policy?

Answer 35

1. A statement on privacy in the workplace – employees should not expect privacy with regard to anything they put on their employer’s computer network even if it is password-protected.
2. A code of conduct – setting out what type of conduct is expressly prohibited. This may include: sending confidential information without consent; using obscene or abusive language; storing, displaying or sending offensive or derogatory images; and threatening or harassing other employees.
3. A statement on deletion and retention – an employer will need to inform employees as to how information is stored and for how long it is retained. Many employees believe that an email is like a piece of paper that can be thrown away. Invariably, that email will have been backed up or will exist in another part of the employer’s computer system.
4. A statement on how the system will be monitored – this is a heavily regulated area. Generally, employers will be permitted to monitor employees’ email and internet use provided that it is for legitimate reasons and the means used is proportionate to the objectives.
5. A statement on training and awareness – employers should introduce training sessions that will make employees aware of the policy and any potential issues.
6. A statement on enforcement – the implementation of the policy will not be effective unless there is an appropriate enforcement strategy. The statement may state that misuse of the technology may lead to an employee being put on suspension pending a formal investigation and may ultimately result in dismissal.

Question 36

Preece v JD Wetherspoons

Answer 36

A pub manager was dismissed after posting rude comments about customers on her Facebook account. Although her privacy settings meant just her friends could see what was written, the remarks were passed on to others, and it was possible to identify the customers from what she had written. She was dismissed, and the dismissal was found to be fair. The organisation had a clear internet use policy, and her actions had brought the organisation into disrepute.

Question 37

What does flexible working legislation give employees?

Answer 37

It does not give employees the right to change their existing working arrangements.

It does provide employees with the right to make a written request to change their working arrangements if they have worked for their employer for 26 weeks or more.

Upon receipt of a valid application, the employer is obliged to consider the request in a reasonable manner and then either accept the request, propose an alternative form of flexible working or reject the request.

If the request is accepted or an alternative agreed between the parties, the new working arrangements will be a permanent variation of the employee’s terms of employment. If the request is rejected, the employer will need to give a sufficient explanation of why it was rejected, and offer an appeal process.

Question 38

Why have a flexible working policy?

Answer 38

In order to be fair and consistent, and to demonstrate that requests have been dealt with in a reasonable manner, employers are advised to draft a flexible working policy.

Having a policy will show employees that their employer is committed to flexible working and may also aid productivity, morale and staff retention.

Question 39

What is likely to be contained in a flexible working policy?

Answer 39

The policy should set out clearly and concisely the responsibilities of both the employer and employee with regard to an application for flexible working.

The policy is likely to contain provisions dealing with:

1. the purpose of the policy;
2. its scope and aims;
3. who is eligible to request flexible working;
4. the application procedure;
5. the appeals procedure; and
6. a standard-form request letter.

Question 40

How are whistleblowers protected?

Answer 40

ss43A-43L and 103A ERA provides employees with protection against victimisation and dismissal in connection with “blowing the whistle”.

Question 41

Why have a whistleblowing policy?

Answer 41

It conveys the importance that an employer attaches to identifying and remedying malpractice.

By providing an early warning system of reporting wrongdoing, employers can increase market and consumer confidence in their practices and embed a culture of honesty and openness.

Encouraging staff to report wrongdoing internally will help to avoid any damage to the employer’s reputation that would occur if staff felt that they had no option but to make disclosures externally.

Question 42

What should be in a whistleblowing policy?

Answer 42

1. a structure whereby an employee knows whom to approach with a disclosure;
2. a description of the types of disclosure covered by the policy – criminal offence, miscarriage of justice, health and safety breach;
3. a procedure as to how a disclosure should be made;.
4. a procedure for the investigation of a disclosure;
5. confidentiality regarding the disclosure;
6. a statement on the protection and support offered to the discloser; and
7. a monitoring and review procedure.

Question 43

What should an effective absence policy contain?

Answer 43

Information on:

1. when time off might be permitted, for example, leave for jury service or for emergencies involving dependants;
2. how employees should notify the employer if they are ill, late for work, or absent for other reasons;
3. when employees should submit a self-certificate or fit note. (under statutory sick pay rules, self-certification is only required from the fourth day, and a fit note from the eighth day of an absence);
4. statutory – and any contractual – sick pay arrangements.
5. possible procedures for using the employer’s own doctor/medical adviser;
6. if applicable, the need to attend a return-to-work interview;
7. consequences of not complying with the policy, for example, when disciplinary measures will be taken;
8. who is responsible for keeping attendance records; and
9. reference to any other relevant policies, for example, alcohol/drug misuse, health and safety, discipline and grievance, annual leave, maternity/adoption/paternity/parental leave.

Question 44

What are fit notes?

Answer 44

Fit notes allow the doctor to select one of two options:

1. not fit for work; or
2. may be fit for work.

If the doctor selects the wording “may be fit for work” there are four options that the doctor can go on to choose between:

1. phased return to work;
2. amended duties;
3. altered hours; or
4. workplace adaptations.

The doctor can then make a further comment, maybe suggesting particular amended duties.

In the first six months of an illness or condition, the fit note can only cover a maximum of three months.

If it is not possible to implement the recommendations made by the doctor, the employee remains absent because of sickness.

Question 45

How should a sickness absence policy deal with holidays?

Answer 45

1. Employees on long term sick leave continue to accrue their statutory holidays.
   (HM Revenue & Customs v Stringer)
2. If an employee becomes ill before or during a planned period of holiday, the employee should be able to take that holiday at a later time, because the employee will actually be taking sick leave and not holiday leave.
   (Francisco Vicente Pereda v Madrid Movilidad)
3. Only the leave (4 weeks) specified in the Working Time Directive may be carried forward if an employee is ill and unable to take the leave unless the employer has an agreement with the employee that is more generous.

Question 46

How can policies be incorporated into the contract of employment?

Answer 46

Policies can be incorporated into the contract by reference. A contractual clause can make reference to particular policies that the employee is then bound by. In some cases, reference will be made to work handbooks or manuals while, in other cases, reference is to stand-alone policies.

Question 47

What is the contractual status of work rules/handbooks?

Answer 47

This is not yet fully resolved. Generally, it is unlikely that the entire handbook will have contractual status.

Question 48

Secretary of State v ASLEF (No. 2) [1972]

Answer 48

British Rail had a very detailed rulebook that railway employees were required to follow. In practice, if it had been followed to the letter it would have brought the railways to a virtual standstill.

ASLEF were in dispute with British Rail and rather than engage in industrial action they decided to carry the instructions out to the letter. The employers instructed them to return to normal working methods. The union refused, stating that all they were doing was carrying out the terms of their contract.

The court held that these detailed work rules were not terms of their contract, but simply expressions of how the employer wished them to carry out their duties. As such, they could be varied unilaterally.

Question 49

Keeley v Fosroc International Ltd [2006]

Answer 49

The Court of Appeal concluded that if a staff handbook contained details of enhanced redundancy pay, there was a presumption of contractual status.

Question 50

What is a Collective Agreement?

Answer 50

This is an agreement entered into between a trade union and an employer concerning the terms of employment followed in the field. Such agreements bind the members of the trade union and the employer.

Question 51

Lozaique v Tesco Stores Limited [2019]

Answer 51

The claimant was employed as a store security man. His contract of employment required him to do 20 hours of overtime per week, for which he was entitled to be paid at time and a half. This was confirmed by a letter in 2005.

The respondent argued that a subsequent collective agreement was incorporated into his contract of employment, and that, as a result, the rate for 12 hours of that overtime had been reduced from time and a half to single time.

The EAT held that the terms in the collective agreement which referred to premiums did not, as a matter of construction, apply to the 20 hours of overtime which were provided for in the 2005 letter. The claimant had an obligation to do this overtime, and the overtime was not therefore voluntary. The terms about premiums could not therefore displace the provisions of the 2005 letter promising 20 hours of guaranteed overtime.