The
new draft Acas code of practice is a short,
non-prescriptive statutory document and it has
been proposed that tribunals should be able to
increase or decrease tribunal awards by up to 25%
if either party has acted unreasonably in
complying with the code. The draft accompanying
guidance, however, is purely advisory and has no
status in the employment tribunal. It is intended
to complement and support the Acas code of
practice and is based on Acas' own experience of
handling discipline and grievance in the
workplace.
The
guidance, which contains extracts from the code,
practical examples and template letters, covers
information on a number of issues, including how
to:
-
resolve
disciplinary issues informally
-
develop
rules and procedures and consider the importance
of training and mediation
-
deal
fairly with formal disciplinary action and
grievances
-
investigate
disciplinary issues and decide on a disciplinary
penalty
-
deal
with short-term and long-term absence
Enforcing garden leave
without contractual right
A
court has recently confirmed that an employer may
be entitled to put senior employees on garden
leave, even where there is no right to do so in
their contracts.
In
SG&R Valuation Service Co v Boudrais and
others, the two senior employees gave their
employer three months' notice of termination, as
required by their contracts. Their employer soon
became concerned that there had been some
wrongdoing (e.g. misuse of confidential
information) and asked the two employees to remain
at home, in effect to take garden leave. The
employer then sent letters suspending them. The
employees subsequently tried to resign with
immediate effect, on the basis that requiring them
to stay at home was a repudiatory breach of
contract.
Evidence
indicated that the employees had misappropriated
confidential information, were planning to join a
competitor and were soliciting other staff to join
the competitor with them. The employer applied for
an interim injunction to prevent the employees
taking any further steps, following which the
employees returned the confidential information
and gave undertakings not to use it. The key issue
then became whether the employees could be put on
garden leave until their notice periods
expired.
There
was no express garden leave clause in the
employees' contracts. Case law has demonstrated
that, in such cases, the key question is whether
the employee has a right to work. The court held
that the employees here did have a right to work
as they had specialist skills, occupied high
positions and were entitled to discretionary
bonuses which were a substantial part of their
remuneration package. However, this right to work
is subject to a qualification. If there is a prior
breach of contract or other duty, and the
employees have demonstrated in a serious way that
they are not ready or willing to work, the
employer will not be required to provide work.
The
court held that the employees had breached their
contractual and other duties in this way so as to
fall within the qualification. In particular, they
had demonstrated a specific hostility towards the
employer which almost, of itself, forfeited the
right to be provided with work. It was therefore
not unreasonable for the employer to put the
employees on garden leave, even where there was no
such right in the contract.
Workers set to benefit
from right to request time to train
The
Department for Innovation, Universities and Skills
has launched a consultation on a
proposed new legal right to request time to
train.
It
has been stated that one third of employers do not
train their staff and eight million employees
receive no kind of training at all every year. It
is anticipated that this new right will benefit 22
million workers in England and that the
legislation could be in place by 2010.
It
is planned that the new entitlement will apply to
all employees who have worked for their employer
for 26 weeks and it has been proposed that
requests should be treated in a similar way to
those for flexible working. It has, however, been
reported recently in Personnel Today that the
skills minister, David Lammy, has confirmed that
employers will not be obliged to pay an employee's
salary when they undertake the relevant training
nor will they need to organise or pay for the
training. The consultation period runs until 10
September 2008.
Employers of illegal
workers named and shamed
Following
the introduction of civil and criminal penalties
for employing illegal workers in February this
year, the UK Borders Agency has now published the
names of employers who have been found employing
illegal workers, together with the details of the
fines imposed.
The
website names 35 organisations that were
prosecuted in May 2008 and who were fined over
£300,000 in total for employing illegal workers.
Since the new penalties came into force, there
have been 265 fines issued, totalling £2.45m.
To
reinforce the Government's approach to illegal
working, there are also now plans to reorganise
7,500 immigration officers nationally into
localised teams, which will include police
officers and customs officials. These teams
will target "black economy hotspots".
Health and Safety
Executive (HSE) - work-related illness and
workplace injuries
The
HSE has recently produced statistics on
self-reported work-related illness and workplace
injuries, covering the period 2006/07.
The
detailed statistics reveal that 2.2 million people
are suffering from an illness they believe was
caused or made worse by their current or past
work. The statistics also show that 36 million
working days were lost overall (1.5 days per
worker). This figure breaks down into 30 million
due to work-related illness and 6 million due to
workplace injury.
