Suspending Disciplinary Hearings if a Grievance is Lodged

- Potentially no need to duck for cover when the employee is firing blanks..

 In the recent case of Jinadu v Docklands Buses Ltd the Employment Appeals Tribunal (EAT) found that an employer is not required to place on hold the disciplinary process while an employee’s grievance is dealt with.Employers will take comfort from this case as it found that the employer did not have to spend hours investigating each of the accusations in the employee’s grievance before being able to complete the original disciplinary process.

The case involved a bus driver being summoned to a disciplinary hearing after reports of poor driving. During the proceedings the employee made a number of allegations against some of the managers involved.  However the employer continued with the disciplinary proceedings and ultimately dismissed the employee. The employee claimed that her grievances should have been resolved before she was dismissed. The EAT ultimately decided that this was not the case and that the dismissal was fair.

Employers:  This is a helpful case for employers but care needs to be taken in relying on such case as each case hinges on its own facts.

The EAT did not go into great depth as to why it rejected this argument made by the employee. This means that it is still uncertain as to when an employer can proceed with a dismissal without dealing with any grievances raised and when this would be inappropriate. However this case does make it clear that if a grievance is ignored then the dismissal is not automatically unfair. This in itself should provide some encouragement to employers.

A disgruntled employee will often make accusations about managers who have criticised them. This should not absolve their input in the process.

If you believe the accusations could have an effect on whether or not the employee keeps their job, then this should be a part of your investigation. If however the grievances are unrelated to the employee’s situation and simply a way of trying to delay the inevitable, then you should proceed with the disciplinary process as planned.

However we would strongly recommend, if at all possible, having an impartial person to chair any disciplinary hearing. This should be someone who has had no involvement with the investigation nor the employee previously.


Fit for Work


Fit for Work Service ready for use

A new service is being launched that allows employers and GPs to make free Occupational Health referrals for employees off work for four weeks or more. The service will be voluntary and so employees must give their consent to be referred by either their GP or their employer.

The service is not fully operational at present but the Fit for Work service for England and Wales has started trialling the service in Sheffield. It is expected that the service will be fully rolled out across England and Wales over the next few months.

The aim of the service is to help employers and employees alike to manage sickness absence more effectively at an early stage so that employees can be helped back to work.  It is estimated that over 130 million days are lost to sickness absence each year at a cost to employers of £9 billion per annum in terms of loss of production and sick pay costs.

Research has shown that early intervention at four weeks compared to six months has a greater impact on getting an employee back to work (when they still have an attachment to their work). Evidence suggests that the longer an employee is off work, the lower the chance of them returning to work.

Some of the key benefits of the Fit for Work Service are:

Free occupational health referrals from an employee’s GP or employer after four weeks of sickness absence

  1. In addition to the referral a practical step by step Return to Work plan will be produced to assist employees in returning to work.
  2. An advice line to offer assistance to both employers and employees so that advice can be sought at an earlier stage

The service should provide some relief for employers faced with increasing sick pay costs since the withdrawal of the Percentage Threshold Scheme. Though the service remains as voluntary it is to be hoped that the independent and impartial nature of the service will encourage more employees to engage with Occupational Health with a view to returning to work as soon as is practicable.

Employers:  details of the service can be found at www.

Where are we now with Holiday Pay


Where are we now with Holiday Pay? 


There has been extensive coverage in the media on what is included in holiday pay after the Employment Appeals Tribunal (EAT) decision on 4 November 2014 in Bear Scotland and others v Mr Fulton and others.  Be careful on relying on the media reports – we have summarised the key points with guidance below on this important judgment.The case of Bear Scotland was about how an employer should calculate holiday pay.  The EAT decided that both guaranteed and non-guaranteed compulsory overtime worked by a worker should be included when the employer calculates holiday pay.  Importantly, employees can make claims for backdated holiday pay.

There are three types of overtime:

  • Compulsory overtime – this should be included when calculating holiday pay.
  • Non-guaranteed overtime – that is, overtime which the worker is required to work if so asked by the employer but which the employer does not guarantee to provide.
  • Voluntary overtime – this is overtime which an employer is not obliged to offer and the worker is not obliged to accept. Such overtime is not covered by the decision which has left some confusion.  However with the way European case law is moving, it seems very possible that true voluntary overtime will be included in calculating holiday pay going forward.

The Key points to take from the decision are:

  • Holiday pay should be equivalent to a worker’s “normal” pay.  What is “normal” depends upon whether the payments in question have been made for a sufficient period of time to justify the label of being “normal”.  If overtime is regularly worked then this payment would be seen to be “normal”.
  • Overtime which a worker is not permitted to refuse (ie guaranteed and non-guaranteed overtime) must count as part of their “normal” pay when calculating holiday pay.
  • There has been much concern of the length of time that an employee can backdate holiday pay claims as technically they could back date them to 1998 (the date of of Working Time Regulations) which could have a large financial implication for employers.  This decision clarified that as far as historic underpayments of holiday pay are concerned, the vast majority of workers will only be able to recover underpayments in the last three months with an unlawful deduction from wages claim (with a small number only able to recover sums further back).

Further points to bear in mind as guidance:

  • The judgment only applies to the 20 days’ annual leave guaranteed under the Working Time Directive, not the additional 8 days’ leave.  The extra 8 days Bank / public holidays given in England are more than the European Directive so it is legal to pay a higher rate of pay including overtime payments for the 20 working days per year holiday entitlement, with the remaining 8 days being paid at the level it previously was.  However administering this may be more problematic and an employer may decide to pay all 28 days at the higher holiday pay rate.
  • There is confusion about ‘voluntary overtime’.  The judgment has no definitive statement to confirm that purely voluntary overtime would also be included.  There are comments in the judgment that lean towards this view and the various European-level decisions favour the fact that voluntary overtime which is regularly worked by a worker would count as part of their “normal” pay and hence should be included when calculating holiday pay but it is not clear.  If an employer is uncertain about this – the best guidance would be that if voluntary overtime is worked on a regular basis with similar hours each week then this is likely to be reasonable to add into “normal” pay for holiday pay purposes.  However, sporadic voluntary overtime would likely not fall into this category.
  • Only where worker’s previous periods of  holiday are separated by a gap of less than 3 months are they able to recover underpayments for a longer period than the 3-month limit set out above, by arguing that the underpayments form part of a “series” of underpayments.  Even in these cases it is unlikely that an employee will be able to recover underpaid holiday for more than one holiday year.
  • A 12-week reference period for calculating average pay is usually accepted as a fair method, however, bear in mind that some workers’ pay may vary throughout the year and a 12-week snapshot could be misleading depending upon the 12-week period captured.  In such cases a longer period may be necessary and justified, even up to a 12-month reference period in some cases.
  • Commission payments – after the decision of Lock v British Gas Trading Ltd it is now accepted that commission payments should be included in holiday pay where an employee:
  1. receives commission as part of their pay;
  2. the commission is permanent enough to be regarded as forming part of their monthly pay; and
  3. there is an ‘intrinsic’ link between that commission and the performance of tasks that they are required to do.

Payments to take into account when calculating holiday pay:

  • commission payments
  • guaranteed and non-guaranteed overtime that is regularly worked
  • only consider voluntary overtime if this is a set pattern and regular
  • incentive bonuses
  • travel time payments (not expenses, but payments for the time spent travelling)
  • shift premia
  • seniority payments (payments linked to qualifications / grade / experience)
  • Stand-by payments
  • Any other relevant payment intrinsically linked to the job such as “time away” payments.

Employers:  going forward, the EAT has given leave to appeal to the Court of Appeal, however following the judgment the Business Secretary, Vince Cable, announced that the Department for Business Innovation & Skills (BIS) will be setting up a taskforce to urgently assess the impact on businesses.  One issue identified is that employees may book holiday after higher periods of overtime to increase their holiday pay related to the previous 12 weeks’ earnings.

The main point is that costs for employers will increase in the long-run which may result in more agency staff being used or a decrease in overtime with a move to pay a slightly higher annual wage without overtime payments or to use temporary staff to cover overtime.

Contact us if you need further guidance.
















The Countdown to Shared Parental Leave

This month marks the beginning of the introduction of Shared Parental Leave (SPL) for employees whose Expected Week of Childbirth (EWC) is on or after 5 April 2015. Pregnant employees now reaching that all-important 12 week stage, may be notifying their employers of their pregnancy. This means that employers may start to get questions about the operation of the new scheme.

Employees are not obliged to take up the option of SPL and the current scheme of 52 weeks’ Maternity Leave will remain the default position unless agreed otherwise.

SPL gives parents who meet the eligibility criteria more flexibility regarding the leave they take upon the birth or adoption of a child. Both parents essentially share a ‘pot’ of leave which can be taken in turns or at the same time. Mothers will still be required to take at least two weeks’ compulsory maternity leave immediately after the birth but the remaining time (a maximum of 50 weeks) can be shared by both parents as desired.

For the first time, weeks of the ‘pot’ of leave can be used simultaneously by both parents. SPL must be taken in complete weeks and can either be taken in a continuous period, which an employer cannot refuse, or in a discontinuous period, which the employer may be able to refuse.

To be eligible for SPL an employee must have at least 26 weeks’ continuous service at the end of the 15th week before the EWC.  The employee must still be employed in the first week that SPL is to be taken and must give sufficient notice of their intentions. To qualify for Statutory Shared Parental Pay (ShPP) they must also meet the same average earnings threshold as with Statutory Maternity Pay (currently £111 per week).

In addition to these criteria, the other parent must have worked for 26 weeks in the 66 weeks prior to the EWC and have earned a minimum of £30 in 13 of these 66 weeks.

The new regulations come into force on 1 December 2014, from when employees will have protection from any detriment or dismissal for a reason related to SPL.

The current general rule is that pregnant employees can begin their maternity leave up to 11 weeks before their EWC. This will also be the case with SPL, so for those first employees to whom SPL will apply, they will be able to begin their SPL on or after 18 January 2015.

Employers:  Contact is of us if you need assistance with an SPL request or drafting any of the letters.  You may need to add this new policy into your Company Handbooks.

Open Plan Offices

Open-plan offices can certainly take some getting used to, particularly if employees have had their own office.  Private offices are increasingly seen as a luxury of the past.  While many employers may wish to concentrate upon the benefits of open-plan working, especially when trying to ‘sell’ the idea to their employees, it would be worth highlighting some of the pitfalls – some obvious some less so.

Health & Safety – The Workplace (Health, Safety and Welfare) Regulations 1992 have specific workplace duties in terms of dimensions and space, lighting, ventilation and temperature.

The Control of Noise at Work Regulations 2005 – impose further duties in terms of noise levels – although it is unlikely that noise levels in a normal open-plan office would exceed the limits specified – nevertheless individual employees may still be unhappy with the level of noise – whether it be too much or too little (believe it or not some employees complain offices have become too quiet and gloomy).  Other employees who need to concentrate may complain of noise-related stress (and consequent illness).

Disruption: a move to an open-plan office might create a working environment that is unduly disruptive and could be unsuitable for certain types of employee in the performance of their duties.  If an employee is unable to concentrate and the employer does not manage the situation there is a risk the employee may resign and claim unfair constructive dismissal.  In the case of Dunne-Smith v London Borough of Greenwich an employee successfully claimed unfair constructive dismissal after a move to an open-plan office when the employer did nothing to remedy the noise, distracting and intimidating environment.

  • Harassment: with employees working in closer proximity there have been higher incidences of harassment as it is the employer’s duty to provide reasonable support to enable employees to carry out their duties without harassment or disruption from colleagues.
  • Contractual right to an office?  Employees who have habitually worked in their own offices might potentially have a case for arguing that it is an implied term of their contract (ie by virtue of custom and practice).  So far this argument has remained untested in the courts.

Employers: It is accepted that the points cited are likely at the extreme end but it is worth bearing in mind if you are considering a change to a open-plan office to consult with your employees beforehand and consider their concerns when you have moved.

Interview Questions to Discover the “Real” Candidate

Employers should play safe when asked about a former employee’s job history.

Tell me about yourself? What are your strengths/weaknesses? Where do you see yourself in 5 years?….. Have you heard these before?

Today’s candidate are smarter and more prepared – so we need to be asking questions at interview to get to the “true” candidate.  Candidates have long known how to dance around the standard interview questions – leaving you with an employee who is good on paper but practically not able to perform when you test them.  You need to get to the employees who are honest about setbacks and willing to learn from their experience.

Here are some questions which may help you reveal a candidate’s true character:

What is the toughest feedback you’ve been given and how did you learn from it?  A good employee is one that can take constructive criticism that’s difficult to hear and use it to grow professionally.  If they can’t think of an occasion when they have received feedback – then they probably don’t take it and use it well.

What are people likely to misunderstand about you?  You need employees who are able to understand how others see them.  Work is not a popularity contest, but an employee who acknowledges the things that they do that push others’ buttons’ is likely to make the effort to be a team player. This is particularly important in small business where you need to be able to fit into the team.

How do you think this job will stretch your professional capabilities?  When you ask a candidate about a weakness  – they can use this to spin their answers, giving replies like, “sometimes I work too hard”.   However, if you ask them about how a job will challenge comfort zones this will make candidates have to consider the skills they need to improve on and helps prepare them for inevitable setbacks.

In what areas have you improved the most in your career?  Don’t let candidates shy away from showing their past mistakes – help them realise that they have come a long way and see they can always improve with support and guidance.

Employers:  think carefully about your interview questions and keep a record for each candidate so you have objective evidence on why you choose a particular candidate when you need to give feedback to the unsuccessful candidate.

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Business Improvements – how we can help your Business

Congratulations. By making it this far, you are well on the way to sorting out your HR and Employment Law problems. We work on a daily basis with HR Directors, CEOs, MD’s and Senior Managers of retained clients.

We can help your business in four ways:

  • Keeping you up to date on changes in Employment Legislation that will affect your business
  • Helping you plan changes in your business structure that may have Legal or HR implications that could threaten your business
  • Taking control in a crisis to ensure that you get the best advice possible to help your business survive
  • Competitive rates gives your business constant access to qualified advice – reducing the cost of dealing with disgruntled employees

We will help you quickly, providing solid consistent legal advice tailored to your business. You will be absolutely clear about what charges to expect, without surprises. You can depend on us to be there to help you sort it out.

  • We can tailor our advice and fee structure to your particular needs. We can advise on an hourly rate basis, fixed fees including payment by instalments.
  • We offer a half hour telephone advice or meeting free of charge to discuss the problem

If you are not convinced that you should use Employment Law Support’s services for your business, you might want to review some of the work undertaken for clients.