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Has an employer to provide to the employee witness statements used to dismiss him


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I know that if an employer does notcomply with the ACAS Code of Practice concerning disciplinary procedures and anemployee is dismissed the employee can claim unfair dismissal and ask fordamages. However I do not understand what happens when an employer does notcomply with the ACAS code of practices because he does not use a propergrievance procedure. I would like to know if this case also the employee canask for damages to the Employment Tribunal

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In theory, but it very much depends on the kind of breach (material or minor), what action the employee had taken, and whether there is an actual loss (no claims for hurt feelings!). So we would need more information to advise.

 

edited to add - and if the employer process is BETTER than ACAS., they do not have to follow acas.

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The consequence is that I was dismissed. There is a disagrement about whether I was an employee or a casual worker. I think that if I was an employee I can claim unfair dismissal and if I was an a casual worker I can claim detrimental treatment. However I do not understand how I can use in my favour the fact that my employer does not follow the ACAS Code of Practice concerning grievance procedure because he does not reply to my complaint at all. My employer dismissed me because he says that my work was substandard but I think that it is because I made a complaint

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you're still an employee of you are a casual worker with a contract etc.

 

The difference that usually matters is between employed and self employed. Who paid your tax?

 

How long had you worked there?

 

What grounds did they give for your dismissal?

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Hi

 

We could really do with a brief rundown of the lead up to the grievance and also what Emmzzi has asked to be able to give you the best advice.

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I cannot give any advice by PM - If you provide a link to your Thread then I will be happy to offer advice there.

I advise to the best of my ability, but I am not a qualified professional, benefits lawyer nor Welfare Rights Adviser.

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you're still an employee of you are a casual worker with a contract etc.

 

The difference that usually matters is between employed and self employed. Who paid your tax?

 

How long had you worked there?

 

What grounds did they give for your dismissal?

 

It would take too long to explain but I am not an employee if I am a casual worker even with a contract. Only employee can claim unfair dismissal. I am not self employed because my employer paid my tax what means that even I am not an employee and cannot claim unfair dismissal I can nevertheless make a claim for detrimental treatment because I was dismissed because I made a complaint. I have worked for one year for my employer. I made a complaint because a supervisor was misbehaving and as a consequence I was dismissed. My employer told me that my work was of poor quality and later he told me that I was rude with a client. In reality he got rid of the complaint by getting rid of the complainant.

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I know that if an employer does notcomply with the ACAS Code of Practice concerning disciplinary procedures and anemployee is dismissed the employee can claim unfair dismissal and ask fordamages[/Quote]

 

Not true. The ACAS guidelines are exactly that - guidelines. They have no statutory basis and whether an employer uses them or not only becomes relevant should a case be successful at an Employment Tribunal. If a claim for Unfair Dismissal is successful, an award may be increased where correct procedure has not been followed.

 

Failure to follow the Discipline and Grievance Procedures is no longer a reason for making a claim to a Tribunal - the dismissal must firstly be proved 'unfair' for them to be relevant. The employer is not obliged to use any procedures at all so long as the dismissal is fair in itself, or where the employee has not completed the qualifying period of service!

 

For an Unfair Dismissal case to proceed, you must have been employed for at least 12 months (if employed before April 2012 otherwise it is two years) unless there is a reason to suspect that discrimination was a factor in the dismissal.

 

Whether you are a casual worker or an employee depends on various factors, most notably the mutuality of obligation. Whether the employee is obliged to undertake work whenever the employer requests, or as determined by a contract which specifies hours of work, rate of pay etc. Other matters may also be relevant, such as whether the business pays tax and national insurance at source etc.

Any advice given is done so on the assumption that recipients will also take professional advice where appropriate.

 

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Just to add to SWs advice, a casual worker is likely to have worker status if there is a written and signed zero hours contract. Which, if in place, may unfortunately mean no unfair dismissal rights.

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If an employer does not comply with the ACAS code of practice:

- It could make the dismissal unfair (given right qualifying period) but careful of a Polkey reduction (ie if the outcome would have been the same with the proper procedure)

- If the dismissal is unfair employee can ask for a 25% uplift of compensatory award

 

If there is no right to claim unfair dismissal or the claim is for something else (detriment agency workers or discrimination) not complying with a grievance procedure will simply be part of the evidence available to show the detriment/unfavourable treatment.

 

There is no right to claim compensation for failure to follow the code in its own right.

 

An employee should also follow the code.

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According to the what is stated in the Acas Code of Practice on Discipline and Grievance [1Mb] the tribunal has to follow the Code of Practice. It is the Advisory handbook - Discipline and grievances at work which is advisory and as a consequence the tribunal does not have to follow. The only way for the employent tribunal to decide if a dismissal is procedurially unfair is to take into account the Acas Code of Practice on Discipline and Grievance [1Mb

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To quote directly from the ACAS Code:-

 

The Acas statutory Code of Practice on discipline and grievance is set out

at paras 1 to 45 on the following pages. It provides basic practical guidance

to employers, employees and their representatives and sets out principles

for handling disciplinary and grievance situations in the workplace. The

Code does not apply to dismissals due to redundancy or the non-renewal of

fixed term contracts on their expiry. Guidance on handling redundancies is

contained in Acas’ advisory booklet on Redundancy handling.

The Code is issued under section 199 of the Trade Union and Labour

Relations (Consolidation) Act 1992 and was laid before both Houses of

Parliament on 9 December 2008. It comes into effect by order of the

Secretary of State on 6 April 2009 and replaces the Code issued in 2004.

A failure to follow the Code does not, in itself, make a person or organisation

liable to proceedings. However, employment tribunals will take the Code into

account when considering relevant cases. Tribunals will also be able to adjust

any awards made in relevant cases by up to 25 per cent for unreasonable

failure to comply with any provision of the Code. This means that if the

tribunal feels that an employer has unreasonably failed to follow the guidance

set out in the Code they can increase any award they have made by up to

25 per cent. Conversely, if they feel an employee has unreasonably failed to

follow the guidance set out in the code they can reduce any award they have

made by up to 25 per cent

 

Consequently, failure to abide by the Code is not on it's own a cause of action and a dismissal must firstly be considered 'unfair' for the application of the Code to become relevant. Until April 2009 the mere fact that an employer did not apply the Code was in itself sufficient to make a dismissal 'automatically unfair' but that is no longer the case.

 

Any case before a Tribunal will firstly be tested on the basis of whether the reason for dismissal was potentially 'fair' - What was the reason given for dismissal (capability, misconduct, SOSR etc) and secondly whether dismissal was a 'reasonable' response on the part of the employer - would any reasonable employer have dismissed in the same circumstances?

 

If the tests are not passed and the dismissal is held to be unfair, then the failure on the part of the employer to apply the Code would potentially cause an award to be increased.

 

A dismissal is not 'procedurally unfair' just because the Code is not applied.

Any advice given is done so on the assumption that recipients will also take professional advice where appropriate.

 

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So according to you the ACAS Code of practice is noTimportant at all concerning the disciplinary procedure and the grievanceprocedure and it is important only to decide whether or not the tribunal awardan uplift or a decrease of 25% of any award given. I think that you are wrongfor the following reasons

 

In the following part of the ACAS Code that youquote

 

However,employment tribunals will take the Code into

account when considering relevant cases. Tribunals will also be able to adjust

any awards made in relevant cases by up to 25 per cent for unreasonable

failure to comply with any provision of the Code

 

We have to notice that it is stated ‘Tribunal willalso’ the word ‘also’ mean that the fact that the tribunal can increase ordecrease by 25% any award in case of compliance or non-compliance of the Codeof practice is an additional element to the fact that the tribunal has to takeinto account the code when considering relevant cases. If you were right this willmean that employers could dismiss employees without informing them of anyallegations made against them and without given to them any evidence used againstthem which are rules stated in the ACAS code of practice. However this cannotbe possible because these are very important principle of British law concerningfairness and natural justice.

 

Concerning the other part of the Code that you quote

 

‘A failureto follow the Code does not, in itself, make a person or organisation

liable to proceedings’

 

Could means only that an employer is not liable of prosecution foronly not following the Code for example for not having followed the Code if anemployee make a complaint he should have also for example dismissed or discriminatedagainst the employee.

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id330uk, you seem to be misinterpreting SW's advice (which, incidentally, is the correct interpretation of the code).

 

The whole reason the code was introduced was to repeal the old statutory procedures which an employer legally had to comply with, or the dismissal would be automatically unfair. Automatically unfair dismissals on procedural grounds alone no longer exist - mainly because the tribunal was wasting its time on hundreds of cases where the grounds for dismissal were fair, but a minor procedural fault meant the employees won the case. However, their compensation was reduced to nil because it was their own fault they were dismissed.

 

Now, the uplift only applies if the dismissal was unfair, and THEN the procedure taken is assessed. The only way that procedure would be taken into account is if enough investigation wasn't undertaken and this meant the employer couldn't satisfy the Burchell test on a reasonable investigation and reasonable grounds for belief in the employees guilt, which is still good law.

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You have forgotten that some parts of the ACAS code of practice are included inacts of parliament. The right that an employee have to be informed of all allegations made against him which are used against him to dismiss him, the right to have an hearing and the right to make an appeal are included in ‘Schedule 1: penalties procedures and appeals Part 1 Dismissal and disciplinary procedures’ of the Employment Act 2002. If these rules are not applied Chapter 34. ‘Procedural fairness in unfair dismissal’ ofthis act says also that a dismissal will be procedural unfair

 

The right to be accompanied is included in chapter 10 ‘Right to be accompanied’ of the Employment Relations Act 1999 and chapter 33 of this act ‘Unfairdismissal: special and additional awards’ says that in case of unfair dismissalthe employee should received four weeks wages as compensation.

 

Because all these rights are given to the employee by statute any breaches of them make a dismissal unfair.

 

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i am tending to lean with id330uk

 

the ACAS code of practice sets the MINIMUM standards an employer has to follow in disciplinary cases

 

THAT HAS NOT BEEN MENTIONED ONCE IN ALL THE POSTINGS SO FAR

 

what about a companies own internal seperate industrial relations frame work on behalf of trade unions. these excel the ACAS code of practice

 

is a breach of these then not classed as unfair dismissal at a tribunal

Edited by squaddie
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The Employment Act 2008 has replaced the Employment Act 2002 and subsequently repealed the default procedures and the automatically unfair provisions I named above. Therefore, it's no longer good law and the ACAS Code is now applied.

 

The fact remains that whilst employers are supposed to adhere to the code, that failure in itself would not render a dismissal automatically unfair. As case law has emerged, it's clear that it only comes into play if the employer UNREASONABLY failed to follow the code, taking into account its size and administrative resources. If correctly following the code would have made no difference to the eventual outcome, there would be no case for unfair dismissal.

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i was told that in all grievance and disciplinary matters and procedual breaches was delt with reference Polkey v A E Drayton on awarding , or not awarding compensation through an employer not following the ACAS code of practice

 

is that still the case

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"All" is too broad to possibly be true.

 

Here is an explanation of the Polkjey guideline.

 

http://www.personneltoday.com/articles/2006/04/11/34865/dismissal-polkeys-place-in-the-modern-world.html

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Polkey is a common law (case law) rather than statutory (legislative) principle and yes, it's still good law. It's technically a defence to a claim.

 

It only comes into play in terms of a percentage reduction for compensation. Polkey was a redundancy case (and incidentally, the ACAS Code does not apply to redundancy dismissals). So say, for example, a redundancy process was not completed fairly, meaning the claimant was unfairly dismissed. If the employer could show that there was a chance they'd have been dismissed if a fair procedure had been followed (for example, if there were two possible employees at risk of redundancy, compensation would be reduced by 50% to reflect this) then compensation can be reduced on a percentage basis, or limited to the amount of time the tribunal believes it would have taken to conduct the process fairly (e.g. by capping loss of earnings compensation at one month).

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Although google is your friend... This article highlights the main changes. http://www.insights.org.uk/articleitem.aspx?title=The+Employment+Act+2008

 

 

The issue is that the Employment Act 2008 does not repeal in chapter 10 ‘Right to be accompanied’of theEmployment Relations Act 1999. Hence in case of breach of this rule at least a dismissal can be considered procedurally unfair even if it has been found being fair

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Isn't that muddying the waters somewhat? Your original and subsequent queries related to a dismissal being unfair solely on the basis of the employer not following the ACAS Code, which was repealed under the EA 2008 - nowhere have you previously mentioned the right to being accompanied as a factor!

 

Perhaps if you explained more thoroughly your query, it might be easier to explain which legislation would apply....

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The issue is that the Employment Act 2008 does not repeal in chapter 10 ‘Right to be accompanied’of theEmployment Relations Act 1999. Hence in case of breach of this rule at least a dismissal can be considered procedurally unfair even if it has been found being fair

 

AFAIK the dismissal would only be unfair for those reasons if you exercised your right to be accompanied and were subsequently refused.

 

But in those circumstances, even if you won on the procedure point, the compensation would be reduced (probably to nil) as the dismissal was substantively fair, meaning that the employee was at fault, and therefore no compensation would be awarded.

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