North West Employment Law - Specialist Employment Solicitors

In my last blog I looked at drafting grievance letters. In this blog I will look at the next stage which is the drafting of letters for appeal hearings.

The decision to be appealed may be a decision in response to a grievance or it could be a disciplinary decision. It could be a decision to dismiss- either for a disciplinary reason or for some other reason- most commonly redundancy.

Although as I said in my last blog ACAS encourage an informal approach- the time for informality is now past. Only an appeal letter will do.

Most of what I said about how to draft grievance letters holds true for appeals. Enough detail for a stranger to understand what it is about but not too long and keep it relevant. I think it is even more important to use short numbered paragraphs in an appeal letter so that everyone is clear.

If the appeal is against a decision not to uphold a grievance- the parts of the grievance which are still relevant (perhaps all of it) should be repeated or restated. From there on all appeal letters should follow the same pattern.

You should state why you think the original decision was wrong (eg ‘It was not my oil rig- it belonged to Transocean’ or ‘I was only trying to help my friend pay for his flat’).

You should also say if you think there was anything wrong with the way the matter had been investigated or decided- if for example only witnesses against you were questioned and helpful witnesses were ignored or if you were not given enough credit for many years of good service.

If you think a previous hearing was not carried out properly you should include this in your appeal. Previous hearings could include grievance hearings, disciplinary hearings, redundancy consultations as well as hearings such as capability reviews. If you do not think evidence was properly considered or the correct weight was not put on it you should say so. Likewise if you do not agree with the minutes of the meeting or believe you made valid points which were ignored or relevant information was withheld- you should say so.

There is quite a bit of overlap between the factors discussed above. You might find yourself listing the same or similar points more than once in slightly different ways. THERE IS NOTHING WRONG WITH THIS.

One final point to bear in mind is that the idea of reasonableness stalks appeals and other hearings which lead up to them every bit as much as anywhere else. All that is expected of your employer is that they act as a reasonable employer- this means carrying out a reasonable investigation or enquiry and making a reasonable decision based on the information reasonably available. If your employer does this (or appears to) then their decision will be accepted by an employment tribunal no matter how wrong they may be or how right you may be.

Often we are telephoned by people under threat of dismissal who ask if we will represent them at a disciplinary hearing a redundancy ‘consultation’ or at an appeal following dismissal. Sometimes we are asked to attend grievance hearings too. The answer has always been the same- ‘no’.

Our refusal is not because we are unwilling to attend but because the statutory rules are clear. An employee is only entitled to be accompanied or represented by a colleague, a trade union official or someone certified by a trade union as a qualified companion.

Sometimes an employer will allow a family member or friend to accompany someone at a meeting but this is a concession and not a right. Employers will never allow a solicitor to attend. Perhaps employers imagine that solicitors know something they do not and will be able to stop them reaching the result they were probably hoping for.

Now there are signs that the situation may be changing. In two recent cases the Court of Appeal has decided that it might be possible in some circumstances for someone working in the public sector to be accompanied by a lawyer at a disciplinary hearing.

In the second of these cases the Court of Appeal decided that if there was more than just the job at risk- if dismissal might prevent someone working in their career at all- then legal representation should be allowed.

Both cases are on their way to the Supreme Court for a final decision so watch this space. It is possible that the Supreme Court will suggest that the right exists whether or not a job is in the public sector or not and equally possible that the ‘right’ will disappear altogether.

To be honest it is never going to be a great day out even though some tribunals are in beautiful buildings which you might enjoy visiting in different circumstances.

There are two things which can make the day better. The first is simple and obvious- it is winning your claim.

The second is fairly obvious too. It is being prepared and includes having an idea what will happen at the tribunal. We do most of the preparation for our clients but we cannot prepare them mentally. That is mainly for the clients themselves.

If you know how your hearing will proceed it will not mean that you win the case- but it might help.

Almost all employment tribunal hearings are in public so if you can it is well worth going to a tribunal to watch a hearing before your own case is due to be heard. Ideally you will be able to watch a case similar to your own but most types of case are dealt with in a similar way so it does not matter too much. Unless you want to spend a lot of time at the tribunal it is best to pick one that is not expected to last too long because the steps are the same regardless of how long the case lasts.

Whether or not you go to see a hearing before your case it is also worth reading up on what happens so we have produced a guide to what you can expect. You can find it in the Employee Guides section of the web-site: An employee’s guide to employment tribunal hearings

Compromise agreements are a popular way of terminating employment. Invariably there are benefits to both parties.

In most cases the main benefit to the employee is money. It is also common for the employee to be given an agreed albeit brief reference. Sometimes there are other benefits too.

Unsurprisingly employers expect something in return. The thing which is always given up by the employee is the right to take the employer to an employment tribunal. It is this which usually tempts the employer to pay the cost of the agreement and this which the employee is ‘compromising’ by entering into the agreement. It is something of a benefit to employees too because the delay, cost and uncertainty of an employment tribunal claim is avoided.

As the years have gone by employers have typically asked more and more from employees in return for a payment. Nowadays a leaving employee amongst other things can expect to be asked to agree to complete confidentiality, to make no derogatory statements about the employer, not to compete with the employer and even not to speak to former colleagues.

You might think that agreements once paid are put in the back of a drawer to be forgotten and this may well be so. But it is dangerous to assume that will always be the case.

Agreements will almost always contain a clause requiring the employee to repay their money if they break any of the promises made in the agreement. Some of the promises might easily be broken by the unwary.

Imagine that you have unexpectedly left RBS after many years loyal service. You meet an acquaintance who says; ‘Hello Fred Goodwin- how come you’re not at the bank any more?’. What do you say? ‘I left by agreement’- that could breach a common requirement to keep the existence of the agreement confidential.

In one case the ex-employee had said ‘I haven’t been sacked’. The judge thought that might have been enough to break the agreement- as it turned out the ex-employee had said far more so no decision needed to be made on that point. That ex-employee ended up getting nothing and having to pay the other side’s costs for trying.

The advice is obvious- when it comes to compromise agreements if you want to keep your money keep your promises too.

For more information on compromise agreements visit www.nwelaw.co.uk/compromise agreements.

Employers have been advised by the Law Society to be wary of using information on websites to vet job candidates. But it cuts both ways.

Our advice to clients is to be careful what they say about their employer and colleagues- particularly if they have a problem at work or if they have lost their job and are either making a claim or are hoping to reach an agreement. That general advice is especially important in electronic media such as Facebook or Twitter and it goes for e-mails too.

Many people use electronic media as a modern form of gossip and put as much thought into what they write as what they say (not much?). There are two obvious but important differences between what is written in cyberspace and what is said- firstly you cannot be sure who will read what you write, secondly what you write can be copied and kept to use against you later. It will be no use then to deny that you said anything or claim that you were misquoted and taken out of context.

One client put his case in serious jeopardy by comments he made on Facebook about his employer whilst making a discrimination claim.

Another client was dismissed for gross misconduct because of comments she made in an e-mail during her notice period. The e-mail was intended to be light hearted and amusing but the employer did not see it that way. They regarded the e-mail as a gross breach of the clients duty and marched her off the premises. That way the employer thought they could avoid making a redundancy payment and save a sizeable chunk of notice pay.

No matter how witty you are and how amusing your comments you can be sure your employer will not see the joke. Especially if it suits them not to. So it is best to say nothing if you do not want your employer to have the last laugh.

Well not really but the Court of Appeal (Ladele –v- London Borough of Islington) did decide that for a Council to threaten to dismiss a registrar for refusing on religious grounds to carry out civil partnership services was justified.

To put it another way religious discrimination ‘was justified by  the Council’s desire to provide its services in a non- discriminatory way’.  So discrimination on religious grounds is OK to avoid discrimination against same sex couples. Sounds like that’s gay laws trumping religious laws. Why isn’t it?

Because we need to decide whether the result would be reversed if the situation was reversed.  Consider a gay doctor who refused to treat a patient known for their viscerally anti gay religious views- would that doctor’s employer be justified in threatening dismissal? We will not know for sure until it happens but I think it is a safe bet that following Ladele that an employment  tribunal will decide that the employer has a duty to extend its services to all comers. That means not permitting its staff to make such choices.

And in other news… the government has recently announced that because of a fall in the RPI the maximum compensatory award which an employment  tribunal can make is reduced from £66200 to £65300 with effect from 1st February 2010