Advising an employer on handling a grievance from a longstanding employee

Nick Hobden was contacted by a London based academy school who needed advice on handling a grievance from a longstanding employee.

The employee was part-time but had been suffering from a period of ill-health. It had been agreed that the employee would return to work on a full-time basis. However, the employee did not return to work and claimed sick pay based on full-time employment. The client had been advised by a HR consultancy that as the employee had not returned to work, the full-time contract was not enforceable by the employee.

When the client attempted to clawback overpaid sick pay, the employee raised a grievance with the support of the National Union of Teachers (NUT).

Nick Hobden provided advice on the employee’s entitlement in light of her contract of employment, the Burgundy Book and the School Teachers’ Pay and Conditions. It was clear that the HR consultancy had incorrectly advised the client of the employee’s entitlement. Nick also advised of the risk of direct and indirect discrimination in light of the employee’s long-term sickness amounting to a disability.

With the legal position correctly established, Nick advised on a strategy for the grievance hearing and appeal, including providing behind-the-scenes assistance drafting key correspondence. As a result the matter was brought to a close with the appeal with minimal cost and publicity.

The matter was complicated by the incorrect advice given to the school and union involvement on the employee’s side. While the financial value of the sick pay in question was relatively low, the risk of a discrimination claim at a later date was significant, and it was clear from correspondence that the union were attempting to lay the groundwork for a future claim. These risks were mitigated by carefully shaping the client’s response to the grievance and appeal in order to rebut the suggestion of discrimination from an early stage and so dispose of the risk of a claim .

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