Club Management Pages

Why do Clubs end up in the Employment Tribunal?

Fact: There were 186,300 claims accepted by the Employment Tribunal Service in 2011/2012. That is more than 3,500 claims each week.
Fact: There are more than 500,000 claims still outstanding. Fact: The median award at Tribunal is £6,065
Fact: The average cost of legal representation at the Employment Tribunal, for a two/three day hearing is estimated to be £8,500 (+ VAT) or £4,000 (+ VAT) for a short one-day hearing. Then why do dubs end up in the Employment Tribunal when more money is spent on defending Employment Tribunal claims than bringing them?
Clubs are small businesses that cannot afford the extravagance of a personnel (or Human Resources) department, and therefore cannot afford to keep up with the frequent changes in employment legislation. Employment law changes occur normally each April and October. If you fail to notice a change to the legislation, then the dismissal is almost automatically unfair.
The potential damage to the credibility of the dub by having a
claim made against it in the Employment Tribunal {which is a public hearing} can be considerable. Some dubs now presume that declaring redundancies •will bring a claim for unfair dismissal or discrimination. Clubs are therefore extremely vulnerable to frivolous and vexatious claims that rely on a 'breach" of the employment legislation where the burden of maintaining HR compliance is too high.
Apparantley only one in ten E m p l o y m e n t Tribunal cases results in a decision in favour of the claimant, but in 10 out of 10 cases, the employer is left to face considerable legal fees. Financial and management resources that are redirected to resisting a claim is money that is not available for investing. Therefore the main beneficiaries in Employment Tribunal cases are the lawyers.
If your club has up-to-date well written Staff Handbooks and Contracts, together with practical advice and assistance in following procedures, that's good and it's not necessary to read any further. However, if your dub does not have any of the documents and assistance described above then you are definately at risk of having a successful claim made against you at the Employment Tribunal. Employment Tribunals are not actually "won" by the Respondent (the dub) but actually only prove that the dub had robust -well written and up-to-date employment documentation and had followed both statutory and contractual obligations. It is highly unlikely that the dub would have a claim to the Employment Tribunal made against it if the sort of information required was in place.
Therefore clubs without any employment documentation or out of date employment documents, should give serious consideration in fulfilling not only their legal obligations but to be fair to staff, put in place the employment documentation prescribed by the Employment Rights Act 1996.
Contrary to popular belief, putting in place up-to-date employment documentation and having correct advice and assistance does not need to be expensive and can cost less each week than employing a member of the club's bar or cleaning staff.

Part Timers and Bank Holidays

How much holiday, including Bank Holidays, are part-time workers entitled to?
Part-time workers have the basic right
not to be treated less favourably than a comparable full-time worker. This means that a part-time worker is entitled to the same paid holidays, on a pro rata basis, as a full-time worker.
Bank Holidays are not additional to the statutory paid leave under the Working Time Regulations. There is no statutory right to Bank holidays.
There are basically four possible approaches to resolving this:
• Let the part-time workers take all eight Bank Holidays regardless of the days of the week they work. If they don't work on days that the Bank Holidays fall, they get given credit, often in the same week, so a 'Tuesday-to-Friday" four-day-worker would have the Tuesday of a Bank Holiday week off instead of the Monday. This may provoke complaints from full-time staff,
• Don't give them any at all. There is no statutory right to Bank Holidays. However, as well as being inherently unfair there would be a very high risk of a claim under the Regulations, or a claim of indirect sex discrimination on the basis that the requirement to work full-time is a condition which is more difficult for the majority of women to comply with than men if they are given to full-time workers.
• Provide paid leave on Bank Holidays when the holiday falls on their normal working day, but not if it does not. This is a big advantage for those who work on Mondays and a disadvantage for those who do not.
• Pro rata the Bank Holiday leave across the year. For example, a part-time worker who works three out of five days should therefore be entitled to receive three fifths of the Bank Holiday entitlement - 4.8 days, which would normally be rounded up to five. This is the approach previously recommended by the Department for Business, Enterprise and Regulatory Reform. Although the Government now believes that the increases in holiday entitlement will make it easier for employers to calculate time off for Bank Holidays for part-time staff.
This article deals only with part-time workers who receive the basic statutory holiday entitlement under the Working Time Regulations.
• Bank Holidays are historically a rather strange concept as they can be specified by Royal proclamation as well as legislation in the usual way. This year, for instance there was an extra Bank Holiday for the Queen's Diamond Jubilee.

Officially a Bank Holiday is a day when banks are entitled to close. The terms Bank Holiday and public holiday are often used interchangeably but Christmas Day and Good Friday are public holidays, not Bank Holidays. This is because they had been holidays for so long under common law that they weren't included when the original Bank Holiday Act was drawn up in 1871. Whist every care has been taken in compiling these notes, the writer cannot be held responsible for any errors or omissions; the notes are not intended to be a substitute for specific legal advice.

References given must be both fair and accurate

A club is not normally compelled to provide a reference but if it does it must be true, accurate and fair.
The reference must not give an unfair or misleading impression overall, even if its discrete components are factually correct.
A club will not be liable for references that are not comprehensive unless the omission
of the information has the effect of giving a misleading impression of the staff member. if the club decides they will provide a reference, ensure the individual's manager, normally the secretary, prepares it and that they in turn have been trained in preparing references and have all the relevant information regarding the individual. References should be addressed to a named person rather than "to whom it may concern".
The club's exposure
The club has a duty not to make defamatory comments or those which amount to malicious falsehood. There is no liability for libel provided the club believes the information in the reference is correct and is given without malice though disclosure of spent criminal convictions should be avoided. A disclaimer should be included but may be void unless it satisfies the test of "reasonableness" (section 2 unfair Contract Terms Act).
It is generally thought that liability cannot be excluded for mis-statement of facts which are normally in a club's knowledge (performance, disciplinary record, etc). However, a disclaimer in relation to an opinion on the employee's suitability for a particular job may be reasonable. A clause excluding liability for negligence must be carefully worded and brought to the attention of the member of staff before the reference is given.
Refusal to provide a reference
clubs can refuse to provide a reference
unless an express or implied contractual term has arisen that the club will provide one. an implied contractual term will arise if it is normal practice in the type of work covered by the staff member's contract
for a reference to be given, and it would be unreasonable to expect a net-,- employer to take on the employee without a reference. morally clubs have an obligation to provide references so you should do unless you have a good reason. in some circumstances it may even be classed as discriminatory on grounds of sex, age, race, sexual orientation, religion or disability to refuse to give a reference.
A negligence claim could theoretically be made by a new employer if the previous employer failed to give a reference thereby concealing something serious which ultimately causes the new employer loss.
Bare minimum references
It is increasingly common for clubs to have a policy of providing a bare minimum reference. If this strategy is adopted it should ideally:
• be communicated to all staff at the outset of the relationship
• be applied uniformly to all staff
• not be used as a means of concealing something serious.
References given by a club
A worker has the basic right, on request, to be supplied with information constituting any personal data held by a former employer. Any personal data held must also be accurate and where necessary kept up to date. However the following points must be noted:
• There is an exemption within the DPA (Data Protection Act) which means that a club does not have to supply references given in confidence which it has
written relating to education, training or employment.
• Despite the exemption a club may choose to provide a copy of a reference which is factual in nature.
• it is not, therefore, obligatory for
a club to supply a copy of a reference to a former emoloyee.

Follow the ACAS Code on disciplinary matters

All staff must be issued with written details of their employment within two months of starting work.
Contracts of employment do not have to be in writing but under the 1996 Employment Rights Act (ERA), the most important part of the contract -"the written statement of employment particulars" must be given to all new staff.
This applies to any staff member employed for longer than a period of two months. Existing staff are also entitled to request a similar written statement. New legal requirements are enacted regularly so it is advisable that a legal advisor reviews the text of a written employment contract and/or of particulars before it is issued.
If the dub does not provide the written statement the staff member may make a complaint to an employment tribunal within three months of the dub failing to provide the statement If there is no statement or if the statement is found to be incomplete or inaccurate the tribunal can award compensation
of two or four weeks' pay capped at the statutory maximum of £430 per week. This compensation is, however, only payable when there is a successful claim at a tribunal involving, for instance, unfair dismissal.
The ERA requires that the following information is provided in a single statement:
• Names of the dub and the member of staff
• Date when the employment began
• Date when the staff member's period of continuous employment began
• Job title or a brief description of the work the staff member has been hired to carry out
• Remuneration details, including: pay scale or rate of pay, timing of payments (e.g. weekly or monthly) and the method of payment.
• Terms and conditions relating to hours of work and the normal working hours
• Terms and conditions relating to holiday entitlement and holiday pay, inducting public/bank holidays
• The staff member's place of work or where the staff member is required to work or is permitted to work, plus details of the dub address
The following information must also be supplied (either at the same time as the principal statement or by instalments within the two month limit).
• Terms and conditions relating to incapacity for work due to sickness or injury, and details of sick pay provisions (including statutory and any contractual sickness/injury scheme)
• Details of pensions and pension schemes
• Details of periods of notice to be given by the dub or the member of staff
• The period for which any nonpermanent employee is expected to
continue or, if the employment is for a fixed date, when it is expected to end
• Details of any collective agreements that directly affect the terms and conditions of employment.
• A statement indicating that the staff member is or is not required to work outside the UK for more than one month
The ERA recognises that the dub may not have a scheme in place for all of these situations. For example, if there is no contractual sick pay scheme, only statutory sick pay. Where this is the case the statement of particulars must state this under the appropriate heading. For all topics listed above, the ERA allows the written statement of particulars to refer staff to other documents to which they have reasonable access. These documents may be in printed or electronic form. If the written statement makes any reference to a staff handbook, it is recommended that the content contains a provision for the member of staff to sign to confirm that they have received their personal copy. It must be also dearly stated, where necessary, which parts of the staff handbook are contractual and other parts represent only general guidance and information.

Stewards Contracts

A property drafted contract of employment with the steward is a key document for any club operating a bar It sets out he steward's rights and obligations and outlines the contractual agreement between the club and the steward in respect of such matters as stock and cash deficits. Increasingly we are finding that the steward's contract of employment has been poorly drafted and key clauses have been omitted Without these key clauses reclaiming deficits from stewards is problematic. When appointing or re-negotiating a contract it is always best to obtain specialist employment lawa dvice or guidance from the Union. Clubs can contain model contracts from their Branch. ACAS Is also a good source of law advice but is not a suitable source in respect of the steward's contract. Examples of the clauses that should be included in the steward's contract are. -
• The steward has charge and control of all bar and cellar stock
• The timing of stocktakes at the start and end of the steward's contract and during holidays.
-That the steward shall attend the stock take and agree the accuracy of the stock count.
• Procedures for checking and appealing against the accuracy of the stock report.
• That once given due notice the steward shall repay to the club any deficiency of cash or stock and shall compensate the club for any act or default on his part.
• In accordance with well-established case law any stock surpluses shall be the property of the club.
• Other specific clauses in respect of the supply of products and the Licensing Act
W he re the steward occupies a club house or flat the steward's contract should reflect this. The provision of rent free accommodation for the better performance of an employee's duties Is one of the few tax free benefits allowed by H M Revenue & Customs. No rent should be charged to the steward as this not only creates a tenancy situation but a tax liability for both the club and the steward The only exception to this is in respect of charges for gas. electricity and other services paid for and provided by the club which should be charged to the Steward as a 'contribution towards accommodation expenses'.
Where the steward has placed a cash deposit with the club the contract should state where the funds are held, the rate of Interest payable and that deduction for deficits of cash and stock can be deducted from the bond. On completion of the steward's contract with the club and receipt of a satisfactory final stock report the procedures for repayment of the cash deposit and interest should be outlined.
The steward should not be a member of the club and should be required to suspend his club membership for the duration of his employment.
Experience has shown that it is revere good Idea for a club to write its own contract. Advice should be sought from the club's governing body or an employment ["firm familiar with the terms of a steward agreement.

Staging an AGM

A property held Annual General Meeting is a good opportunity to involve the members in the management of the club. to explain the work done by the Committee and outline future plans. Many Officers work hard all year but let themselves down by running a poorly planned and thought out AGM. The purpose of the AGM is to transact certain business: the report on the accounts: acceptance of the account: organise the ballot for officers and committee: and other matters as required by the club's rules.
• The meeting should be properly convened in accordance with the club's rules. The date and time of the meeting must be placed on the club's notice board and it should request motions be submitted to the Secretary by a certain date.
• The club rules usually provide for a notice period for the AGM. this varies from club to club but is frequently 21 days before the date of the meeting.
• An agenda should be prepared incorporating any motions and displayed in accordance with the club rules.
• Where required ensure accounts are displayed and that sufficient copies are available for the meeting.
• The Chairman is the most Important person in the meeting as they ensure it Is conducted in accordance with the agenda and club rules. The Chairman should understand their role and be familiar with the agenda: this will help ensure the meeting is conducted in an orderly manner.
• Before the AGM starts the Chairman should ensure only members are present and that a count is carried out to determine that the requisite quorum is present.
Conduct of the Meeting
• No business other than that specified on the agenda should be conducted there is no need for "any other business" to be an agenda item as this should be covered by motions
• All questions should be directed through the Chairman. Speakers should be called by the Chairman and to preserve order only one person should speak at a time. The Chairman should insist there is no talking across the floor and speakers cease when requested. Clubs frequently request that speakers state their name or stand when called If these procedures are not followed a meeting can quickly degenerate into disarray and chaos.
• The Chairman usually makes a brief statement thanking the staff and Committee. highlighting key points from the accounts and outlining plans for the future.
-Motions must be discussed in accordance with the club rules. Other matters
-The future of the club and a strong Committee depends on an active membership. To encourage participation in a meeting many clubs give members incentives such as beer tickets. If the club can afford this policy it certainly encourages higher attendance.
• To further encourage participation some clubs invite a guest speaker or arrange for a brewery or other supplier promotion on the night. The correct conduct of a meeting is not an easy skill to master. Some issues will always divide the membership and policies that are good for the club may not be for the benefit for the members in the short term, so heated and sometimes irresolvable exchanges are inevitable. Nevertheless a basic knowledge of tried and tested procedures will help ensure that most meetings are conducted In an orderly and effective manner.

Zero Hour Contracts

A zero-hours contract is a Contract of Employment which, while meeting the requirements of the Employment Rights Act 1996 by providing a written statement of the terms and conditions of employment, contains provisions which creates an "on-call" arrangement between the club and its staff.
It does not oblige the club to provide work for its staff, nor does it oblige the staff to accept the work offered. The member of staff agrees to be available for work as and when required, so that no particular hours or times of work are specified. The members of the club's staff are expected to be on call and receive payment only for hours worked. Zero-hours contracts may be ideal for some people who want occasional earnings and are able to be entirely flexible about when they work.
If zero-hours contracts are identified as the best option, clubs need to be clear about what type of arrangements will suit and what this means in terms of their responsibilities as an employer and the employment rights of the staff that are engaged in this way. Because "zero-hours contract" does not have a specific meaning in law, it is important for clubs to ensure that written contracts contain provisions setting out the status, rights and obligations of any zerohours staff.
Research among more than 2,500 workers by the Chartered Institute of Personnel and Development has revealed that zerohours employees are more likely to be satisfied with their work-life balance than other staff, regardless of the contract type. The use of zero-hours contracts had been around for years before they were demonised, got on to the political agenda and took the usual (unjustified) ritual hammering by some elements of the media. Careful consideration needs to be given, however, by any club contemplating the use of zero-hours contracts. The main reason for the use of zero-hours contracts being highly criticised, is not the use of zero-hours contracts themselves but poor management. Properly managed, zero-hours contracts will, in the right circumstances, be of immense benefit both the club and its staff. This article is not intended to be a substitute of professional advice. If your club is contemplating the use of zero-hours contracts, speak to your Branch Secretary first.

Computer Policy can save you money

Computers are being increasingly used in clubs and most Committees have procedures in p lace cov ering data backup, virus protection, use of passwords and the acceptable and unacceptable use of the computer.
Few however, give this area much attention, so it is advisable that the Committee periodically review their computer usage policy. No club should be in a position where they have to say to the auditor or licensing authority: "We don't have any records or membership details for last year because the Secretary left and deleted all the files".
Some of the more common problems can be avoided if a computerliterate member of the Committee oversees certain matters such as the regular back-up and off line storage of key data: this is certainly advisable where a new Secretary has been appointed Some of the common problems we encounter are:
Online banking:The risks posed by electronic banking for individuals, charities and small businesses have been well publicised. Many have been defrauded by internal bookkeepers and administrators through the use of electronic banking facilities. The Payments Council (the body behind bank current account switching) came to an agreement with all banks and building societies in the UK, that they would provide "dual authorisation" of transactions online or by telephone before the end of 2013. This would mean clubs will have the option to make payments electronically but still have more than one person authorise the payment securely.
At the time of writing (December) this facility was not yet available so our recommendation is that the club continues to use cheques signed by two or more officers.
HM Revenue & Customs I D and password: The Revenue & Customs (HMRC) supplies online identifying codes to enable the club to file VAT returns payroll under RTI and access other services. Without these codes the club is unable to file these returns leaving themselves open to hefty penalties. We frequently come across situations that on the departure of a Secretary the committee are unable to find these codes and when they contact HMRC the new Secretary is unable to pass the security checks.
Obtaining new codes and passwords can takes considerable amount of explanations and we have seen delays of up to three months in obtaining this information. To avoid this codes should be held by a person in addition to the Secretary. such as the Chairman other officer or your accountants We at Jeffs & Rowe currently hold more than 100 HMRC identity codes for our clients. This procedure can save the club both time and money.
Use of electronic mail:The club should have its own email address and all electronic correspondence to and from the club should be made using this address. The ability to send and receive correspondence will not be restricted as with modern devices email addresses can be accessed from remote locations and by more than one person. When communicating with members use the "contact group" or "bcc" commands, these functions keep members' contact details private. Do not use the "to" command We have encountered a number of instances where disgruntled members have started a campaign against the club by using its own members' contact list. Without a computer usage policy there is little to stop officers and employees carrying out all kinds of bad practices. A few simple controls could save the club money and time as well as reducing the risk of its reputation being tarnished

Be wary of how you use CCTV

I have recently received a number of complaints from clubs who have caught staff on CCTV not ringing in sales and think they can simply dismiss them on the basis of the CCTV; they can but only if they follow the correct procedures. Clubs can use CCTV Images taken from cameras positioned on club property provided they demonstrate they have taken all steps possible to protect the personal information of anyone captured by the CCTV footage. To ensure you comply with the Data Protection Act (DPA) the CCTV Code of Practice and other relevant legislation follow and document the procedure set out below:
1. Acknowledge that the club does have CCTV in place, with appropriate signage. State that the function of the CCTV is to prevent crime and protect public safety. Remind the staff that the use of CCTV in disciplinary proceedings is referred to in their employment contract and the employee handbook.
2. State that the CCTV allegedly caught an employee committing a disciplinary offence (which may also be deemed to be a criminal act) in the course of their employment. The CCTV footage may also show images of other staff not involved in the offence/crime.
3. State that the club wishes to use the CCTV Images in connection with the disciplinary proceedings against the staff members. The CCTV footage may also be made available to the police.
4. State that the club recognises that the CCTV Images contain personal information and therefore to comply with the DPA they cannot be disclosed or released. However, section 35(2) of the DPA exempts the CCTV images from the non-disclosure provisions of the DPA where they are used for the purposes of, or in connection with, legal proceedings.
5. State that in the opinion of the club the disciplinary proceedings constitute legal proceedings in the light of the alleged criminal activity, and therefore the proposed use of the images in connection with the disciplinary proceedings is exempt from the non-disclosure provisions of the DPA.
6. State that the staff member will be given a chance to view the CCTV Images and to fully explain and/or challenge their content.
7. Where relevant, state that the club has investigated the possibility of obscuring the images of other staff members, and whether or not this was possible. The obscuring of the identity of persons not relevant to the alleged misconduct should be attempted before the CCTV footage is shown to the staff member.
8. State that circulation of the images will be restricted to those attending the disciplinary meeting and those attending are covered by confidentiality provisions.
Clubs should ensure that they document the above process within their meeting notes before release of the CCTV Images, otherwise they will breach the DPA.

Heath Robinson Club loses achohol licence

Clubs have been warned to keep on top of their maintenance after a proprietary club in Blackpool lost its licence for adopting what was described as a "Heath Robinson" approach.
The Council's licensing panel revoked the club's alcohol licence after hearing infringements of fire safety requirements were among the worst to be seen in the town.
Enforcement officer Mark Marshall told the Committee the fire escape was about to break down because of rust and rot and it looked like it had not been maintained for a number of years. He added that there were various Heath Robinson-type repairs that had been done to the drainage, there was a tinder box of combustible materials being stored in the cellar while the fire alarm was inoperable and sewage had overflowed into the rear yard of the premises. "I have not seen a list so comprehensive about what's wrong in terms of fire safety for many years, if at all." The club's owner said he had leased the premises but had now taken back control and was in the process of carrying out the necessary work to regain his licence.

E-Smoking needs a policy

Sales of e-cigarettes grew by 340 per cent in 2013 and in the UK around 1.3 million people are now "vaping."
The demand for e-cigarettes appears to be insatiable, although there is some doubt about their long-term health benefits.
As e-smokers are categorised by law as non-smokers, this leaves clubs in a dilemma about how to handle e-smokers at work and in the club.
• Should e-smokers be allowed to smoke at their place of work?
• Should e-smokers be required to share the same, usually outdoor, smoking areas as regular smokers or
• Should members and staff be allowed to e-smoke wherever they like?
In specific circumstances it may be reasonable to allow e-smokers to smoke at their place of work. However, depending on the club culture and other factors, this may not be appropriate. Mixing e-smokers with regular smokers could also violate their right to a smoke-free environment. Potentially this could give rise to grievances or at worst, claims for constructive dismissal.
The most important thing is for the club to incorporate an e-smoking policy into an existing smoking policy. And, if there's an existing smoking area for regular smokers, set aside a separate facility for e-smokers. The National Executive looked at this some time ago and recommended that because it can cause confusion and confrontation e-smokers should be treated the same as smokers. By making these simple but effective changes, the potential for problems with e-smoking will successfully be avoided.

Don't bury your head in the sand - Club financial issues

Clubs with financial or other problems have been urged once again to talk to their Branch rather than waiting till it's too late and, like the proverbial ostrich, burying their heads in the sand.
In his speech at this year's
Conference Union President George Dawson said: "Please use the Union to assist you but
don't leave it too late that we can't do anything and when we've assisted take our advice instead of ignoring it and coming back later when things have got worse."
Committees also need to look out for new rules which mean Employment tribunals will now be able to order a club which loses a tribunal claim to pay a financial penalty. This will mean that if a club loses a case brought by a member of staff, or a former member of staff, and is shown to have especially poor workplace practices, it could be fined up to £5,000 on top of any back pay that is due to the employee.
Acas's "early conciliation" also came into effect this month, subject to transitional provisions.
This means that a member of staff thinking about making an employment tribunal claim will need to contact Acas first. Acas
will then offer "early conciliation" to try to resolve the dispute quickly and cost-effectively.
By Andrew Dane - The Business Medic

Managing Staff who are sick

The introduction of Employment Tribunal fees for claimants means clubs may unwittingly adopt a less cautious approach to weak claims to the Employment Tribunal. They should not, however, avoid the need for sound employment practices.
New fees introduced at the end of July mean staff seeking to make a claim against a club through the Employment Tribunal service will face substantial two-stage fees. They will need to pay initially when submitting a claim and once more if they wish their case to proceed to a hearing. The costs are:
• Type A, which covers most basic claims, for example, claims for non-payment of wages or a redundancy payment. The issue fee is E160 plus a hearing fee of E230.
• Type B, which covers more complicated claims such as unfair dismissal and unlawful discrimination. The issue fee for this sort of claim is E250 and E950 to go on to a hearing.
Tribunal fees are most usually paid by employees; clubs submitting a form ET3 in response to a claim do so without any cost. However, specific fees have been introduced for employers it will cost E350 to submit an appeal against a Tribunal decision or E600 for judicial mediation in an attempt to settle a case prior to progressing to a hearing.
The annual number of claims being lodged with the Employment Tribunal service is around 186,000 or more than 3,500 each week. The hope is that with the introduction of fees for claimants, the Government and employers will see a substantial reduction of this figure. Without doubt, some employees will be discouraged in making a claim by having to pay a fee.
The significance of this may not, however, be as great as first thought. The fact is that a sizeable percentage of employees will avoid having to pay the fees themselves. The fees will be waived for those employees who are truly unable to be able to afford them - this will apply to claimants who either receive specific benefits or are on a low income.
Public statements by trade unions declaring that they will be paying the fees on behalf of their members have added to the list and are another factor regarding Tribunal fees. Many claimants also have the benefit of legal expenses insurance contained within their home contents policy.
It would be naive for clubs to believe that the threat of employees submitting a claim against them has significantly diminished. Clubs must not take a less cautious approach in their behaviour towards employees. It is absolutely crucial that clubs should continue to follow professional employment practices which comply with their statutory and contractual obligations and the current Acas Codes of Practice.
In reality the only practical way is to avoid the need for staff to make a claim to a Tribunal in the first place. In the past seven years only one of my retained clients has had a claim made against them at the Tribunal. Unfortunately, this was one that was out of my control from the outset.
By Andrew Dane The Business Medic

Upfront tribunal fees challenge fails

I receive frequent calls from clubs about staff who've gone sick without submitting either a medical certificate or a self-certification form. This often leads to clubs either doing nothing, or worse, taking inconsistent action.
Falling to follow a fair and proper procedure when dismissing staff for absence can lead to costly disability discrimination and unfair dismissal claims, for which the average Tribunal awards last year were E27,235 and E32,115 respectively. Such claims are increasingly likely as sacked employees struggle to secure alternative employment in current job market.
Dismissal is the last resort when dealing with genuine illness. If you comply with all four of the following stages, you are unlikely to fall foul of the law.
Stage one: meeting with the employee:
The Club Secretary should conduct regular return-to-work meetings. They should meet any staff with high levels of absence to discuss the cause of the absences, any medical advice the employee has received, the likelihood of future absences, and possiblejob changes that would reduce the absences. Clubs should discuss possible return-to-work dates for long term absences, and plans to assist employees when they do return.
Stage two: Medical input
There may be an underlying cause for regular absences. Clubs need medical input to understand what an employee is capable of doing, to find out if there are any adjustments that could be made to the employee's role to reduce absence levels, and to get a view on whether the employee is disabled under the Disability Discrimination Act 1995 (DDA). Any medical input should be discussed with the employee as part of the consultation process.
Stage three: Reasonable adjustments
Clubs have a legal duty to consider any "reasonable adjustments" to enable employees classed as disabled under the DDA to continue to perform their roles. Dismissing employees not classed as disabled
is also more likely to be fair if the club has considered possible adjustments and alternatives. Whether or not an adjustment is reasonable will depend on:
• the practicability
• its cost and likely effectiveness
• the club's financial resources
• its nature and size and
• The extent to which the employee, and possibly other staff, are willing to co-operate with the changes.
Stage four: Dismissal decision
When considering dismissal clubs should have a full, up-to-date picture of the employee's medical condition and have considered alternatives to dismissal. They should also take into consideration:
• length of service
• performance
• whether there is likely to be a change in attendance
• whether suitable work is available and
• the effect of the employee's absence on the club.
It is always best to consult your Branch Secretary before considering dismissal.

You still must beware tribunals

Unison has lost its latest legal challenge to the introduction of an upfront fee for tribunal claims against an employer. However, the High Court has left the door open for the situation to be reviewed later.
The court ruling acknowledged that some of Unison's claims were pertinent but the Lord Chancellor's judgement found that the union had not been able to present sufficient evidence to support overturning the current fee system.
The ruling said: "We would underline the obvious: there is no rule that forbids the introduction of a fee regime."
The High Court was asked to consider that paying an upfront fee, as a condition of accessing legal redress, violated the principle of justice, and that it was indirectly discriminatory and unlawful. Judgement has been passed against the union this time, but the ruling suggests the basic arguments presented still need to betested, which was not possible at the time the union made its challenge. Lord Justice Moses said: "Theevidence at this stage lacks robustness necessary to overturn the regime," and experts say this paves the way for the fee system to be challenged again once its full impacts are better understood.
Clubs will welcome the continuation of this barrier to employment tribunal claims. However others who represent claimants have argued there is scant evidence of an extensive frivolous tribunal claims problem and, accordingly, this fees regime is an over-reaction to a relatively minor problem:'
All eyes will be on the first set of official employment tribunals figures, due to come out later this year. This will determine whether Unison is able to successfully challenge the High Court judgement again.
Lord Justice Moses added: "If it turns out over the ensuing months that the fees regime is having a disparate effect on those falling within a protected class, the Lord Chancellor would be under a duty to take remedial measures to remove that disparate effect and cannot deny that obligation on the basis that challenges come too late. "
How strong any appeal will be is unknown. Despite the Lord Chancellor agreeing more data was needed, he also noted that from April 6 all claimants will be required to seek conciliation (via ACAS) first.
Unison general secretary Dave Prentis said: "The decision is very disappointing but we will fight on and take our very strong arguments into the Appeal Court. We provided clear evidence that since the fees were introduced, the number of employment tribunal cases has collapsed. It is doubly disappointing therefore that it was decided that our case had been taken too early."
He added: "The bottom line is that the government should not put a price on justice. We strongly believe that these fees are unfair and should be dropped, which is what we will argue in the Court of Appeal."
To assist Committee members in running their Clubs these are excerts from The Journal Management pages
Further information from external sites can be found here
More pages will be added as the information is available in the Club Journal
While every care has been taken in compiling these notes, the writer cannot be held responsible for any errors or omissions; the notes are not intended to be a substitute for specific legal advice.
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