Public and Commercial Services Union

DWP/BB/031/07

All known circumstances

This circular provides guidance on the application of discretion when a warning would be inappropriate before and during an attendance review meeting and trade union representation.

A manager is expected to “consider all known circumstances and have a possible course of action in mind” before the meeting with the employee and their trade union representative (procedures 3.2). Preparation for the meeting by the manager may include asking their own manager for advice or the ES customer support team (para 3.1). Managers must put their reasons in writing and consult others, such as their manager or a more senior manager, before informing the employee of the decision when applying their discretion not to give a warning. This means that cases in which a warning is clearly not appropriate should be excluded from the warning procedures without the need for a review meeting.

Trade union rights

When the manager thinks a warning may be appropriate they must send the employee a written invitation to attend an attendance review meeting (procedures 3.3/appendix 1). The purpose of this meeting is not properly explained but the key provision listed in the procedures (para 3.8) is the right to be accompanied by a trade union representative with a statutory right to address the manager.

At this point the manager becomes accountable to both the employee and their trade union representative under the terms of the Employment Relations Act 1999 which require, as amended, in section 102B, that:

The employer must permit the trade union representative to:

a) address the hearing in order to do any or all of the following –

• put the workers case
• sum up the case
• respond on the workers behalf to any view expressed at the hearing

b) confer with the worker during the hearing

Failure to comply with the statutory rights under section 102B may be the subject of a complaint to an employment tribunal under section 11 of the act. Where a tribunal finds that a complaint under this section is well founded it shall order the employer to pay compensation to the worker of an amount not exceeding two weeks pay.

Review meeting purpose

The manager who hears the employees case at this review meeting is the decision maker. Decision making standards are published in the HR decision makers guide.

The proper purpose of the meeting is to –

1. Review the employees attendance record
2. Review advice received from other managers, OHS, HR. Advice must not be mistaken as instructions.
3. Check whether any of the eleven exclusions apply
4. Give the employee and, or, their PCS representative the opportunity to present new evidence or information. There is no right for the representative to answer questions directly on behalf of the employee. You can ask for an adjournment and advise them how to answer.

The appropriate application of the managers discretion may also be reviewed on the basis that a warning may be inappropriate after considering:

• Whether all the steps required in the procedures have been followed correctly
• Whether there is a reasonable expectation of improved attendance
• Any mitigating circumstances e.g. domestic, personal, work problems
• The nature of any underlying medical condition or disability and any reasonable adjustments that have been considered, made or not made to the working conditions
• The employee’s length of service and previous attendance record
• Whether the employee has been given every opportunity to state their views and that those views have been properly considered
• Whether reasonable steps have been taken to understand the effects of the illness

These considerations are listed under the attendance advice section Q24 and are as relevant at the start of the attendance management process as at the end.

Warnings not automatic

DWP attendance management policy (para 4) confirms that “warnings are not automatic but must be given unless one of the exceptions applies”.

DWP attendance procedures (para 3.2 (b)) list eleven circumstances in which warnings will not be given together with the discretion not to give a warning “in circumstances not listed”. There are therefore twelve exceptions which are intended to safeguard against warnings, together with the legal requirement to comply with statutory rights.

Advice for members and branches

PCS advice for branches and members is published in:

DWP/BB/108/06 HR decision makers guide

DWP/MB/006/07 Your attendance management rights

DWP/MB/007/07 Your grievance and trade union rights

DWP/BB/23/07 Attendance management improvement warnings

DWP/BB/24/07 Attendance management and “one off” absences

Evidence for review

Employees have the right to use the grievance procedures when dissatisfied with a warning. Details of warnings that have been wrongly given and not corrected under the grievance procedures should be provided to PCS DWP group office. Evidence of problems with the operation of policy and procedures is needed to support the case for further improvements.