Legal assistance guide for officials
There have been some changes to our procedures such that it is appropriate to update the guidance for employment law matters.
Officials are urged to read and make themselves familiar with the following guidance. In this way, the service to members can be improved, and the process made more efficient.
Please note that this should be considered more as an aid for Officials, rather than the basis of legal advice.
This guidance reflects the introduction of the Employment Act 2008 (resulting in the current ACAS Code of Practice on Disciplinary and Grievance procedures), and the repeal of the previous statutory dismissal and grievance procedures on 6th April 2009.
The guidance has been approved by Thompsons, but if in doubt, Regional Officials or Executive Council members should contact Thompsons under the informal arrangement if there are questions relating to an application for Legal Assistance.
Please destroy any unused “Application for Legal Aid” forms (the green, four-page form, or photocopies of this) that you may still have as they were superseded in 2005. The Legal Department should not still be receiving applications on these forms, and as such they will be returned to sender.
You will note that the new form (FBU website, Member services, FBU official forms, Legal Assistance, Application for Legal Assistance – FBU members), has a request that it be read carefully, and for the fullest possible information to be supplied. You should also note that this form now includes guidance for members. The form can be completed online and the first two pages of the pdf printed off for signing and return to Head Office.
An official who is approached by a member with a view to applying for legal assistance should make the member aware of the guidance note and inform them that they should make themselves familiar with the contents.
If the member proceeds with the application, a hard copy of the guidance should be given to the member for their own records. Guidance booklets will be distributed to Brigade Secretaries shortly, but in the interim period, the guidance should be printed with the form once it has been completed.
If the application is authorised at Head Office, the member will also receive a further copy of the booklet with the letter confirming that the application has been successful and has been passed to Thompsons for action.
Below are pointers to help to ensure that if you are assisting with or endorsing the application, you can ensure that:
A) Such an application is being made at the appropriate time; and
B) The essential information is being provided for Thompsons to consider the issues and advise accordingly.
Although neither Head Office nor Thompsons require mountains of detail, we need more than, for example, the “Unfair Dismissal” box to be ticked, with the full details in Section 4 being simply “Unfair dismissal”. As you might imagine, this puts Head Office in a difficult position. Although there is the warning that there may be delays as a result of insufficient information being supplied, a claim for unfair dismissal must be lodged with the Employment Tribunal within three months less one day of the date of the dismissal. If the form were to be returned to the member for additional information to be supplied, and for an otherwise valid claim to become time-barred in the interim, the member may try to sue the FBU.
Below therefore, are pointers to be used regarding the various categories of application.
As soon as a member has been dismissed, the Official representing him/her must provide the member with the appropriate guidance note. This makes it clear that until the member receives a letter from the solicitors confirming that they are acting, after an application for legal assistance has been lodged and approved, the member has responsibility to ensure that an ET claim is lodged within the time limit. The Official must also keep a file copy having written on it the member’s name and the date it was given to the member. The information leaflet also now forms part of the ‘Application for Legal Assistance’ form available on the website.
An application under this category can only come after termination of employment. Members should not be applying for assistance on possible unfair dismissal. Where they are intending to resign and explore the possibility of a claim for Constructive Unfair Dismissal, advice and assistance must be provided by local Officials, who may seek guidance from Thompsons under the informal arrangement as explained in the circular 2005HOC0493PW. Constructive Dismissal claims are extremely difficult to win, and to have any chance of success a member will have to prove a fundamental breach of the contract of employment which gave them no alternative but to resign.
If the member is awaiting a disciplinary hearing, and feels that they may be dismissed, it is not grounds for the matter to be referred to Thompsons.
The application should be made after the member has been dismissed at the first stage of the process, usually the first hearing, but not straightaway. An appeal should be lodged and six weeks from the initial dismissal allowed for the appeal to conclude. If the appeal concludes unsuccessfully within the six weeks, the application for assistance should be made then. If it takes longer, the application for assistance should be made when six weeks have passed from the initial dismissal.
If six weeks have elapsed, do not delay any further with the application. If the appeal has not been lodged immediately, but six weeks have elapsed, then even if only a short period has elapsed since lodging the appeal, ensure that the legal assistance application is made immediately. Thompsons can then advise on any potential Employment Tribunal claim. The internal appeal process will still be a matter for local Officials, who may seek guidance from Thompsons on matters relevant to the appeal.
For an application with regards to dismissal, in Section 3, Head Office requires more than “spoke to FBU rep.” It is expected that some sort of formal action, for example lodging an appeal, will have already been taken to address the situation. A copy of the written grounds of appeal should be submitted with the application to Head Office. If the member does not wish to appeal he/she should be advised to do so and informed that legal assistance will normally be refused where an appeal has not been lodged. He/she should also be informed that even if a claim for unfair dismissal is successful there is likely to be a deduction of up to 25% compensation for his/her failure to adhere to the ACAS Code of Practice.
In Section 4, it is essential that the details supplied include the date the member was first informed of the dismissal – treat that as the date of dismissal, whatever alternative dates or notice the employers may give. Also set out the reason for dismissal and provide a copy of the member’s letter of dismissal as a minimum. Ideally a copy of the documents and witness statements considered at the disciplinary hearing should be provided.
Please also note that if the member has been employed for less than a year, they will not have the legal right to a claim for unfair dismissal unless they have 51 weeks service and the statutory notice they are entitled to would take the length of service to a year (there are government proposals to extend this qualifying period).
The date the member was first informed of the dismissal is usually the ‘Effective Date of Dismissal’ which is crucial because, regardless of any appeal, the Employment Tribunal will not accept a claim for Unfair Dismissal if it is received more than three months after dismissal (see “Time Limits”, below).
If the member is seeking assistance for a pension appeal, in most cases, it should be handled by local Officials with assistance from Thompsons under the informal arrangement if necessary. In the rare cases where it is considered that a legal challenge is required against a particular decision, an application form should be submitted to Head Office for approval but note that very strict time limits apply, and so the application should be received at Head Office within seven days of the decision.
As soon as a member contacts an Official to represent him/her following discrimination, that Official must provide the member with the attached information leaflet confirming the contents of this circular. This makes it clear that until the member receives a letter from the solicitors confirming that they are acting, after an application for legal assistance has been lodged and approved, the member has responsibility to ensure that an ET claim is lodged within the time limit. The Official must also keep a file copy having written on it the member’s name and the date it was given to the member. The information leaflet also now forms part of the ‘Application for Legal Assistance’ form available on the website.
If the member has ticked this box in Section 2 of the form, they should be aware that, to win the case, they will have to demonstrate that they were subject to unfavourable treatment contrary to the law. Although members may feel that the Employer has been unfair, this alone does not mean the treatment can be shown to be unlawful. The law prohibits discrimination on the grounds of sex, race and nationality, disability, sexual orientation, religion or belief, transsexuality, age, part time working, fixed term workers, agency workers and Trade Union membership.
In Section 3 of the application form, Head Office will normally expect to see that a grievance has been lodged promptly as required by the ACAS Code of Practice, and either the process has concluded but not to the member’s satisfaction, or is ongoing and six weeks have elapsed from the discrimination alleged.
In Section 4, full details must be provided including a copy of the written grievance. The grievance should state what type of discrimination the member is complaining about for example, disability discrimination. It is not satisfactory for the member to put something as simple as “I have been unlawfully discriminated against”. As with Unfair Dismissal, Head Office requires a succinct but sufficiently detailed summary with information regarding events and dates and copies of key documents. If the discrimination is not ongoing, then if a claim is valid, it must be lodged within the time limit (see “Time Limits” below).
Other, in general, means other legal issues in relation to a member’s employment such as unlawful deduction of wages, flexible working cases etc. Similar considerations as to grievances and time limits apply. As soon as a member contacts an Official to represent him/her in any such case, that Official must provide the member with the attached information leaflet confirming the contents of this circular. This makes it clear that until the member receives a letter from the solicitors confirming that they are acting, after an application for legal assistance has been lodged and approved, the member has responsibility to ensure that an ET claim is lodged within the time limit. The Official must also keep a file copy having written on it the member’s name and the date it was given to the member. The information leaflet also now forms part of the ‘Application for Legal Assistance’ form available on the website.
Ensure a grievance is lodged specifying which type of Tribunal claim it relates to and allow six weeks from the event giving rise to the complaint e.g. the deduction of wages, the first refusal of flexible working etc.
If the issue is, for example, a matter of property, criminal or family law, FBU Legal Assistance does not extend to appointing a solicitor to advise and assist. The member should be directed to the FBU/Thompsons helpline. They are entitled to up to half an hour’s legal advice over the telephone, but cannot have documents considered, nor have legal representation which they would have to arrange privately.
Note however, that it is clearly stated on the form that it is not to be used for Personal Injury claims.
Please note first of all that not all legal issues can be resolved in the Employment Tribunal. For those that can, there is a strict time limit of three months, less one day, in which to submit a claim. When the clock starts ticking depends on the specifics of the possible claim. For example, where the issue is unfair dismissal, it is three months less one day from the Effective Date of Termination.
For Discrimination claims, if the unlawful discrimination is not a single act for which the three-month limit would apply, there is the possibility that the unfavourable treatment can be considered “continuing discrimination”. But that should be regarded as a last resort. If in doubt, apply the earliest possible act of discrimination as being when the clock started.
But it is important to remember that the clock starts running as set out, not when the grievance or appeal is lodged or concluded.
The law provides that the internal grievance procedure should be used before lodging a Tribunal claim. It will be possible to lodge a Tribunal claim prior to exhausting the grievance procedure, but providing the grievance is lodged promptly the matter should not be referred to Head Office until six weeks after the clock started. Officials should explain to members that they must raise a grievance about a potential Tribunal complaint as per the ACAS Code of Practice. If not, legal assistance is likely to be refused and even if their claim is subsequently successful they are likely to have a deduction made of 25% from any compensation awarded.
Extensions to the time limits no longer apply. In dismissal cases, always file an appeal and exhaust that procedure, whether or not a legal application is also required six weeks after the initial dismissal. In discrimination and other potential Tribunal cases (for example unauthorised deduction of wages), always file a grievance and exhaust the grievance procedure, whether or not a legal application is also required six weeks after the clock started.
In all cases where a legal challenge is required, lodge the legal application no later than six weeks from when the clock started even if it has only been a short period since the grievance/appeal was filed or if it is only now being filed. An application should be lodged before the six weeks have elapsed only where the internal process has concluded within that period. Head Office will inform the member/s if the application for legal assistance has been successful, BUT, until the member/s has/have received confirmation from the solicitors appointed to act on their behalf, it remains incumbent on the member/s to ensure that time limits are met.
If there is any doubt about time limits, this can be checked using the informal procedure. If the six weeks have already elapsed, lodge the grievance/appeal and legal application at the same time. If you consider the three months is very close or may have already elapsed you should seek informal advice from Thompsons immediately. If there is no way of salvaging the claim you must then report this to Head Office and the appropriate Regional Official(s).
Please note that Employers may not be overly concerned with delays. This is because they can benefit if a potential claim becomes time-barred. Union Officials must always be alert to the issue of time-limits.
Clearly, legal applications are not lodged in all cases where members are dissatisfied with decisions of the employer. It continues to be the case that legal assistance should only be sought where appropriate. If in any doubt, make use of the informal procedure.
It is crucial that the above procedure is followed when the Union is first approached to assist a member and that the information set out is provided when Legal Assistance applications are submitted to Head Office. At first, it may seem to create more work if applications are to be thoroughly checked before forwarding to Head Office, but in the long run, the whole process will be improved, and will mean a better service to all members in need of such assistance.
Finally, unnecessary or inappropriate legal applications cost the Union money. Please note that Officials must not sign and date a blank application form, ready for the member to complete the details (and except in very rare instances, no Official should sign the member’s declaration “p.p.”). The assumption must be that the member makes the application, and the local Official checks through and endorses it.