18 July 2008
Contrasting EAT decisions on grievances and statutory requirements
The debate about what constitutes a statutory grievance continues in these two contrasting cases.
In Highland Council v TGWU and others, TGWU wrote to the employer on behalf of the Claimants (Cs) raising equal pay issues and a failure to apply the Single Status Agreement.
EAT held that the letters did not constitute collective grievances as they failed to name any of the Cs. Furthermore, they could not be regarded as grievance letters under the statutory procedures as they had not been sent by Cs and did not particularise specific action directed at individual Cs.
This decision highlights the importance for Claimant representatives to properly consider the statutory requirements.
In Procek v Oakford Farms Ltd, Mr Procek appealed against the tribunal's finding at first instance that his letter stating expressly that it was not intended to be treated as a formal letter of grievance could not be replied upon for the purposes of Step 1 of the statutory procedures.
Somewhat surprisingly, EAT found that as Mr Procek had set out his grievance in writing and that 28 days had lapsed prior to him submitting his claim, he had complied with the necessary requirements and was therefore entitled to have his claim heard.
Good practice: Employers should give aggrieved employees the opportunity to have any grievances heard formally; even where the grievance is expressed as informal.
For further information, please contact Caitlin Anniss: canniss@vwl.co.uk.
Retirement: Breach of employer's duty to notify intended retirement date
Todd v Sanquhar Home Ltd S/116418/07
This case is a useful reminder that procedures should be followed strictly in relation to retirement.
A Scottish employment tribunal had to assess compensation due to an employee who only received 12 weeks' notice of her retirement date, rather than the six month required by the Age Regulations.
The Employer admitted the breach. As the breach was found to be one "of timing only", the tribunal awarded only one week's pay out of a maximum of eight.
For further information, please contact Allison Cook: acook@vwl.co.uk.
Retirement: Dismissal on day before 65th birthday is discriminatory
A cautionary note on the timing of retirements.
Plewes v Adams Pork Produce Limited
In another retirement case, a tribunal held that an employer could not rely on the default retirement exemption set out in the Age Regulations when it retired an employee on the day before his 65th birthday. The exemption applies only where the employee retires on or after their 65th birthday. The employee's dismissal could not be objectively justified and was therefore discriminatory.
Even though Mr Plewes was re-engaged through an agency two weeks after his retirement, he was awarded compensation of over £36,000, including an award of £7,500 for injury to feelings.
Good Practice: Get the timing right!
For further information, please contact Caitlin Anniss: canniss@vwl.co.uk.
Employment status of a secondee
This is a warning for employers to be clear on how they deal with secondments, how they are labelled and to what extent their employees can be controlled by others.
Fitton v City of Edinburgh Council
During a secondment, the secondee usually temporarily works for a third party organisation but remains employed by their original employer, and will, following the termination of the secondment, return to the original employer.
In this case Dr Fitton brought a claim for unfair constructive dismissal and sex discrimination against her original employer, the Council, when her employment terminated at the end of a secondment to ELLP. The tribunal held that she was an employee of ELLP.
The EAT upheld the tribunal's finding that Dr Fitton was employed by ELLP and not the Council.
Good practice: Use clear Secondment Agreements dealing with control & dismissal issues and indemnities.
For further information, please contact Felicity Larter: flarter@vwl.co.uk.
Tier 1 of the points-based immigration system launched
Just a quick reminder that Tier 1 of the points based system is now in place.
Tier 1 covers highly skilled migrants, entrepreneurs, investors, and foreign graduate students.
For further information, please contact Juliane Brustinow: jbrustinow@vwl.co.uk.
New code of practice on whistleblowing issued
Public Concern at Work, an independent authority on public interest whistleblowing, has produced a new code of practice, "Whistleblowing Arrangements", in association with the British Standards Institution. The code focuses on key factors to consider when implementing whistleblowing arrangements, including the introduction and maintenance of a whistleblowing policy, and sets out good practice for the introduction, revision, operation and review of effective whistleblowing arrangements.
To download a copy of the code of practice please click here.
For further information, please contact Alison Graham: agraham@vwl.co.uk.
Bad news for unions
This case could have a significant impact on any union-backed negotiations, particularly Single Status implementation.
Allen v GMB
The Court of Appeal has handed down its judgment in this important and controversial case.
Mrs Allen was employed by Middlesbrough Metropolitan Borough Council and had claimed that she was paid less than men doing equal work or work of equal value.
GMB negotiated a single status agreement with the Council, prioritising pay protection for employees whose roles were being downgraded. This was at the expense of the back-dated pay for women, who they failed to advise that they would be receiving substantially less than they were likely to receive by litigating. Following a finding in favour of the Claimants at tribunal, the decision was reversed by the EAT.
In a technical analysis, CA upheld the Claimant's appeal and have denied the right of further appeal. Compensation will now be assessed, with around 4,000 claims against GMB still outstanding.
Many unions have adopted similar policies to GMB and the decision may now result in them reconsidering their involvement in equal pay claims.
Good practice: Ensure staff are clear of the basis for any negotiated settlements/packages.
For further information, please contact Julie Davies: jdavies@vwl.co.uk.
This publication is for guidance only. Reliance should not be placed upon it and nor should action be taken, without obtaining advice in respect of the specific circumstances applicable. We will be pleased to provide such advice or assistance.
