Our round-up of news items of interest to those working with employment law is reported this month by Alastair Currie and covers: disciplinary sanctions on appeal (no right to impose a harsher sanction); a summary of the government's latest whistleblowing plans; details of the top cases dealt with by Acas; the new flexible working form from BIS and an update on overtime and holiday payments. Plus we detail our forthcoming events.

Disciplinary sanctions on appeal

An interesting interpretation of the options available to employers when deciding disciplinary appeals has been published by the Court of Appeal (CA) this month.  In McMillan v Airedale NHS Foundation Trust, an employee lodged an appeal against a final written warning which the Trust then increased to dismissal. The employee argued that there was no power in the Trust's contractual disciplinary procedure to increase the sanction against her, and sought an injunction against the Trust. The CA agreed and said that the contractual disciplinary procedure did not contain a right for the employer to impose a harsher sanction on appeal; it only contained the right for the employee to appeal the original decision.  In coming to its decision, the CA noted that the non-statutory Acas guidance on disciplinary and grievance procedures sets out that an appeal should not result in a harsher sanction being imposed. The Court also noted that the Trust's disciplinary procedure specifically states that there is no further right of appeal, so the employee would not have any further means of challenging a harsher sanction.  Having said that, the CA did say that it did not see any reason why employers could not include a power in their disciplinary procedures to impose a harsher sanction following an appeal, but that right would have to be expressly provided for in a written procedure.

Government response to whistleblowing Call for Evidence

At the same time as making changes to the whistleblowing legislation last year (please click here for our summary) the government issued a Call for Evidence. The results of the Call for Evidence have now been published and can be summarised as follows.

  • The government sought views on whether "abuse and misuse of power" and "gross waste or mismanagement of funds" should be a category of disclosure, but has decided that this would create too much legal uncertainty.
  • The government intends to improve guidance on what types of conduct the categories of malpractice cover, as it feels that there is a general lack of clarity about this area.  The government will also improve guidance on methods of disclosure.
  • The government intends to retain the statutory process for updating the list of 'prescribed persons' (i.e. persons to whom qualifying disclosures may be made) but will review the list on an annual basis going forward. We can expect changes in respect of the regulatory bodies for health and social care workers, and consideration is being given to the inclusion of other bodies.
  • Student nurses will be included in the scope of the whistleblowing legislation.  The government does not intend to legislate in relation to other categories of worker, such as non-executive directors, solicitors, police officers and consultants, but will keep this area under review.
  • The possibility of American style 'financial incentives' for whistleblowers was mooted, but the government did not consider the evidence strong enough to introduce a system of financial incentives for whistleblowing in the UK.
  • Improved guidance for employers and individuals will be published and it will also produce a model whistleblowing policy. The response stated: "To help drive a cultural change, the Government will identify and celebrate where organisations embrace whistleblowing and where organisations effectively use whistleblowing as a way of ensuring malpractice is dealt with at an early stage or avoided completely." 

Acas – annual report

Acas has published its 2013/14 Annual Report, which contains statistics about the uptake of the various Acas services in the year to 31 March 2014, and data on the most common topics leading to disputes. The data predates the introduction of mandatory early conciliation in April 2014.

Acas' pre-claim conciliation service (which became mandatory early conciliation in April 2014), resolved 83% of the cases referred to it before they were issued at tribunal, compared to 77% in 2012/13.

The top issues dealt with by the Acas helpline service were: discipline, dismissal and grievances; redundancies and lay-offs; and contractual matters.

Overall, 40,938 employment tribunal cases were referred to Acas for conciliation in 2013/14. The largest category of complaint was unfair dismissal, which accounted for 24,306 cases.

Flexible working – new form

BIS has published a new standard form for employees to use when making a flexible working application under the amended statutory right to request flexible working, which came into force on 30 June 2014. If you do not have a standard flexible working form for internal use, you may start to see applicants using the BIS form. However, this is simply a suggested format; there is no requirement for applicants to use this form, so you may wish to request that applicants use your standard forms or adapt the BIS version to suit your own requirements. Please click here for our summary of the new flexible working arrangements and details of how Bevan Brittan may assist you with their implementation. 

Exit payments - consultation

On 25 June 2014, HM Treasury published a consultation on the government's plans to legislate for the recovery of exit payments when high earners working in the public sector return to the same part of the public sector within 12 months of leaving it.

The proposals being consulted on would require high-earning public sector employees or office holders to repay exit payments on a pro-rata basis should they return to the public sector within 12 months. 'High earners' are defined as those earning above £100,000, with a taper for those earning between £100,000 and around £80,000. The bodies covered by the proposals would be those whose employment and remuneration practices are the responsibility of the UK government – this includes NHS bodies and local authorities and other public sector organisations (a link to the full list is available in the consultation document).

The consultation closes on 17 September 2014. Bevan Brittan is part of the Employment Lawyers Association's working party on the consultation, so please contact me or another member of the Bevan Brittan employment team if you would like to feed in any comments. Alternatively, responses to the consultation may be e-mailed direct to HM Treasury: exitpaymentrecovery@hmtreasury.gsi.gov.uk.

Overtime and holiday pay

This week, the Employment Appeal Tribunal is hearing two key joined cases on overtime and the calculation of holiday pay. The well-known employment tribunal case of Neal v Freightliner has now settled, but the cases with which Neal was joined, Fulton and another v Bear Scotland Ltd and Wood and others v Hertel (UK) Ltd are going ahead. Both these cases deal with the question of whether an employer should take a worker's overtime payments into account when calculating their holiday pay (see our May 2014 article). It is very likely that the Employment Appeal Tribunal will reserve its decision, so we are unlikely to know the outcome for some months. We will provide an update via an Employment Eye Alert and our Twitter feed as soon as the decision is published.

Bevan Brittan's Workforce Forum

Our next Workforce Forum will take place on 7 October 2014 at our London office – details of the topic will be confirmed nearer the time.  This is an invitation only event for OD and HR Directors. For more information please email Jodie Sinclair.

Save the date – December employment seminars

Our next series of client training seminars will be taking place in December, across our three offices:

Birmingham, 4 December 2014
London, 9 December 2014
Bristol, 10 December 2014

The Birmingham and Bristol events will take place in the morning and the London event will take place in the afternoon. Details of the topics and precise timings will be confirmed when invitations are sent out later this year.

Follow us on Twitter!

Between our regular update, the Employment Team is now tweeting employment law news – follow us @BevanBrittanEmp