spds 2012/// grievances and constructive dismissals 9 november 2012 old course hotel, st andrews
TRANSCRIPT
SPDS 2012///Grievances and Constructive Dismissals
9 November 2012Old Course Hotel, St Andrews
Lesley Murphy Partner
9 November 2012
Overview
/ Grievances – Process issues – Grievance horrors– Relevant reforms– Issues arising from ACAS Code
/ Constructive Dismissal– Essential ingredients – Repudiatory breaches – The trust and confidence term and the ‘last straw’ doctrine – Caselaw update
Grievances – some process issues
ACAS Guide
Effectively communicated?
Probe for more detail?
Accept at face value?
Timing of investigations, who should investigate?
Before or after formal meeting?
Investigators relationship with aggrieved / witness
Who should not meet the aggrieved employee?
Bias / apparent bias?
Investigator = decision maker?
Consider mediation at what stage?
Impact on timing of process
Appropriate case to mediate?
Employee to let the employer know the grievance in writing.
Meeting to discuss the grievance.
Allow employee to be accompanied.
Decide an appropriate action.
Allow employee to appeal if not satisfied
HR House of Horrors
Grievances involving
TUPE
Grievances involving
TUPE
Grievances involving 3rd
parties
Grievances involving 3rd
parties
Grievances during
disciplinaries
Grievances during
disciplinaries
“silent” witnesses
“silent” witnesses
Some good news?
/ Whistleblowing grievances
/ Protected conversations
/ Reduction in qualifying service for UD claims / compensation cap
/ Abolition of questionnaires
Grievances and the ACAS Code
/ Application to former employees?
/ Penalty increase / reduction in awards
/ Meeting “without unreasonable delay”
Constructive Dismissal
/ fundamental breach of the employment contract
/ resignation in response to the breach
/ employee did not waive or affirm the contract by delaying too long before resigning
What is a repudiatory breach?
/ Pay reduction
/ Change in duties
/ Longer working hours
/ A breach of the trust and confidence term
The implied trust and confidence term
/ Refusing to investigate complaints promptly / Ignoring complaint of apparent bias of grievance
appeal panel/ Failure to treat sexual harassment allegations
with appropriate gravity/ False accusation of fraud/ Failure to make ‘reasonable adjustments’/ Seducing into a lesbian relationship/ Persistent amorous advances
‘The last straw’
/ The nature of the ‘last straw’ (Omilaju v Waltham Forest LBC)
/ The effect of delays in resignation – Munchkins v Karmazyn & Ors – El-Hoshi v Pizza Express – Fereday v South
Staffordshire NHS
Curing a breach?
Buckland v Bournemouth University Higher Ed Corp
Employer Employee
…or preventing a breach?
Assamoi v Spirit Pub Company (Services) Ltd
What if…
…employee already in breach himself?
…employer mistakenly believes he’s acting lawfully?
…employee resigns for variety of
reasons?
…the workplace norm is abusive language or high
handed management?
A fair constructive dismissal?
Welch v The Taxi Owners’ Association (Grangemouth)
Reasonable Employer
Questions?
Contact
Lesley Murphy Partner
9 November 2012
t/ 0141 227 9392
m/ 07880 736 480