Chapter 16Employing labourment and details of disciplinary matters and grievance
procedures.
Disciplinary proceduresdeal, for example, with the
number of warnings that will be given before suspension
or dismissal and appeal proceedings. Grievance pro-
ceduresrelate to complaints in regard to any aspect of the
employment with which the employee is not satisfied.
These matters are now controlled by the Employ-
ment Act 2002 and regulations made under it. All
employers must inform their employees regarding dis-
ciplinary and grievance procedures and in any case they
are deemed to be those set out in Sch 2 to the Act (see
Fig 16.1).
Changes in the particulars
Changes must be given to the employee in writing as
soon as possible and in any case not later than one
month after the change. They may be given by reference
to a document, e.g. a collective agreement, which is
readily accessible provided a similar document was used
to give the original information.
Terms of employment – collective
agreements
If the terms of the employment can be changed by a col-
lective agreement with a trade union, the particulars
should say so because if this is the case, the terms of the
job can be changed without the employees’ consent. The
results of the employer’s negotiations with the unions
are incorporated into the contracts of the employees
and become binding as between employer and employee
even though the agreement between the employer and
the trade union is, as is usual, binding in honour only
(Marleyv Forward Trust Group Ltd(1986)). In other
cases, the terms of the employment cannot be changed
unless the employee has agreed and if the employer
introduces a variation in the contract as by, say, lower-
ing pay, then the employer is in breach of the contract.
It was held in Rigbyv Ferodo Ltd(1987) that an em-
ployer cannot impose a pay cut on employees without
breaking their contracts of employment.
Employees who have had a pay cut imposed on them
may take proceedings in the ordinary courts for breach
of contract or make an application to an employment
tribunal under the ERA 1996 for money wrongfully
deducted from pay (see further later in this chapter).
Alternatively, they can regard themselves as construct-
ively dismissed and make a claim to an employment
tribunal on that basis.
A valid reduction in pay can be achieved by negotiat-
ing a new contract with employees and under the original
contract if this allows the employer to vary its terms
without the employees’ consent.Failure to comply with the obligation to give
written particulars
Section 11 of the Employment Rights Act 1996 provides
that if an employer fails to give written particulars in the
time scale required or fails to notify changes in the terms
of the contract (agreed bilaterally or made unilaterally by
the employer under contract provisions) the employee
can go to an employment tribunal. If a statement is given
but the employee thinks it is not complete, then either
the employee or the employer can go to a tribunal to
decide which of them is right.
The tribunal may make a declaratory judgment, e.g.
declaring that the employee has a right to a statement,
and may also say what should be in it. The statement
as approved by the tribunal is then assumed in law to
have been given by the employer to the employee and
forms the basis of the contract of employment. Failure
to give written particulars does not make the contract of
employment unenforceable by the parties.
The Court of Appeal ruled in Eaglandv British
Telecommunications plc(1992) that a tribunal could not
merely invent terms. Section 2(1) of the ERA 1996 allows
the employer to give no details if none exist, provided
that the statement says so at least under such headings as
sick pay and pensions where provision of these benefits
is not compulsory. It would be wrong of a tribunal to
invent terms in these areas and force them as implied
terms of the contract upon an employer who had not
agreed to them and where there was no inference of
agreement from the conduct of the parties.
However, in the case of mandatory terms which s 1
of the ERA 1996 requires to be stated in the written
particulars such as remuneration and hours of work the
Court of Appeal said that it would be exceptional if the
evidence before a tribunal about these matters did not
allow a tribunal to make an inference of agreement or to
identify an agreement from the evidence. However, if
this was not possible, the tribunal might have to imply
one. This seems a fair approach. It must be rare indeed
to find a contract of employment in which there is no
intention to pay and receive wages!
Written particulars are a right of the employee and
therefore they must be given whether the employee asks
for them or not (Coalesv John Wood (Solicitors)(1986)).461