Obligations, Contracts, Discipline and Grievance Handling

1. Obligations, Contracts, Discipline and Grievance Handling

2. Background • contract - central to Er-Ee relationship • (offer, acceptance, consideration) negotiated/agreed • plus common law/statutory regulation • socio-econ. exchange - open-ended unlike commercial contracts • job contracts & managerial power/authority • an equal balance in service relationship? • subordination to reasonable & legitimate authority • employer determines organisation of work and standards (reasonable) • delivery of performance, motivation + loyalty, commitment • common law duties of employer & employee • Express and implied terms (general obligations)

3. Formation of contract of employment • express or implied, verbal or in writing • “usually concluded orally by people who rarely think out still more rarely express, any terms” 1940 • subject to statutory regulation • Changes to the Contract? • mutual consent? • within scope of effort-reward relationship? • within employer’s (reasonable) operational discretion? • Vicarious liability & Negligence • employer liable for negligent/wrongful acts & omissions of employee in course of employment.

4. Employment Rights Act 1996 • Consolidated earlier Acts repealed in whole or in part • Unaffected • Equal Pay Act 1970 • Sex Discrimination Act 1975 • Race Relations Act 1976 • Transfer of Undertaking (Protection of Employment) Regulations 1981 • Disability Discrimination Act 1995

5. RIGHTS AT WORK? • be clear on what is expected of you? • know how your manager sees your performance? • get on with your job in your own ways, once constraints objectives have been agreed? • make mistakes occasionally? • have a say/veto in who works for you? • expect work of a certain standard from your staff? • criticise performance when it falls below an agreed standard? • be consulted about decisions which affect you? • take decisions on matters which affect your department? • refuse unreasonable requests?

6. Employer obligations to employee • pay contractually agreed remuneration • provide work? • give lawful instructions only • treat reasonably with respect, trust confidence • provide sound supervision job instruction? • observe provisions relating to sickness, holiday pay, hours. • permit time-off for public duties (statutory) • indemnify / insure • provide references? • provide for employee health, safety welfare provide reasonable safe working conditions (see statutory provisions) • Not infringe Human Rights

7. Employee obligations to employer • ready, willing available to do work • work for employer in employer’s time • use care, skill, be reasonably competent not to be unduly negligent • obey reasonable, lawful instructions • take care of employer’s property ( good will?) • Fidelity: act in good faith, respect values confidences • Absences? • Industrial action? • Response to operational change? • Justifiable refusal to obey? • exceptional danger • order would constitute a legal offence

8. Unfair Dismissal • “Usually evident when someone has been dismissed.”The employer has clearly terminated the contract? • Also when: • fixed term contract expires but is not renewed - is this unfair? • Plus constructive dismissalemployee has reason to resign because of employer conduct

9. Automatic invalid reasons • Employer prevents an eligible employee to return to work after pregnancy/childbirth - regardless of service (ERA). • Sex, race & disability discrimination/victimisation/detriment - assertion of statutory rights & support • Health & safety s.100 • right not to be dismissed or subject to detriment for • acting as safety representative and carrying out designated activities to prevent/reduce risks & dangers • Public Information Disclosure Act 1998. • Legitimate TU membership (non-membership) & activities

10. No right NOT TO BE Dismissed. • without good reason (ERA 1996) • complaint & redress to Employment Tribunal • Principlejob stake cannot be ended just by serving contractual notice. • Restraint on hire-fire employer • Does it really constrain employer’s freedom of action?

11. Eligibility? • 1 year continuous service at date of termination. • no FT/PT thresholds • no service requirement for inadmissible reasons • claim within time limits (reasonably practicable) • Exclusions (Human Rights Act?)

12. Valid reasons for dismissal Employer must show that reason or principal reason falls within ERA s96 • Conduct common, leading to the most complaints for unfair dismissal • Capability or qualification for performing the work employee unable to do job/work satisfactorily or does not have qualifications for it. Illness & frustration of contract • Redundancy Generally not grounds for U/F dismissal claim. • Statutory requirement Continued employment contravenes statutory duty e.g. driver’s licence, work permit. • Some other substantial reason

13. Conduct • refusal to obey reasonable instructions • introduction of a new working system? • timekeeping, absenteeism • breach of exclusivity, trust and confident • stealing from employer (what does this comprise?) • breach of safety instructions, negligence, acts and omissions. • immorality, drunkenness • Theft - what is theft from employer? • Communicating, maintaining and demonstrating behaviours associated with a "Code of Conduct"

14. Capability • incompetence, ill-health, other mental & physical quality • inability to develop sound relations with others? • reasonableness + reasons ? • appraisal processes, training & supervision • degrees of incompetence .... one serious lapse? • Does ill-health justify an employer terminating the contract? • informed judgement - circumstances & options • investigate the permanently unfit to work • Qualifications relating to aptitude and ability • Diploma, tech. certificate, license/permit or professional qualification. • must be substantially concerned with job aptitude or ability

15. Reasons in writing • entitled to be given reason for dismissal. • request written reasons within 14 days (pregnancy excl.) • But not if alleging constructive dismissal • employer can provide written statement voluntarily • Employees dissatisfied with not receiving a statement or believe it inaccurate - go to a tribunal • What was reason or principal reason? • Does it fall within ERA or some other substantial reason? • Is this the real reason (use redundancy as excuse?) • Did employer act reasonably or unreasonably?

16. Discipline Guidelines (ACAS) • Why disciplinary rules and procedures? • promote fairness & order in treatment of individuals & conduct of employee relations • assist organisation to operate effectively • define basic expectations and set standards of conduct at work • procedure to ensure that standards are adhered to • a fair method of dealing with alleged failure to observe them • Functional, normative, prescriptive • confirms managerial responsibility/prerogative • a conflict reduction mechanism in both unitary & pluralistic environments • Code of “work place ethics” (moral behaviours)?

17. Procedural Fairness • Employer - to inform of rules, procedures, consequences, penalties • Fair, objective, no discrimination • Available evidence + probability in the circumstances. Employer has • genuine belief in the misconduct? • reasonable evidence and investigation? • Substantial equity and merits of the case > uniformity of treatment • Notice of proceedings and preparedness • Do not overlook procedural defects even if, on balance, the same decision would have been taken. Can still be U/FD. Stick to procedure. • Caught “inflagrante delicato” e.g. + ve drugs test (airline or oil-rig)? • “It is alleged that” employee did something outside work? Establish the truth. Do not dismiss on hear-say.

18. Natural Justice • “What am I being accused of” • Right to be heard, put "my side of the case", query evidence and have own evidence considered – even for gross misconduct. • Confront my accuser? Witness statements? • Right to representation. Where practicable. Who? Instant vs. summary dismissal (field court) • take account of employee’s information before deciding • avoid hasty conclusions e.g. assumptions about prior disciplinary warnings, say, poor time-keeping • Appeals?

19. Company Policy Framework - 1 • Published, common knowledge vs. verbal e.g. What is employee theft? • Do’s vs. Don’ts? (Positive/negative culture & values focus on contract performance) • MINOR breach (corrective feedback) • general irritations & tolerances • weak-fit between duties/standards, performance/ behaviour • company’s values & consistent managerial expectations? • implied from general, routine, common-sense behaviour? • outside workplace? Denial of personal expression? • MAJOR breach (forever undermines root of relationship) • accumulated minor breaches - no improvement? • trust relationship cannot be re-built • criminal action? outside workplace?

20. Company Policy Framework - 2 Appeal? External mediation? Internal grievance procedure • Grievous breach - all steps • Recorded warnings + guidance on corrective action • Warning shelf-life • Appeal? Via grievance procedure? • Let the punishment fit crime • Representation • Which managers involved at which stage? • Correspondence & documentation Dismissal - or other Formal stages Written warning - maybe Final Verbal warning - noted Informal advice “a word in your ear”

21. Company Policy Framework - 3 • Summary Dismissal • with/without notice • suspension - with or without pay? • transfer, demotion, fine? • Final written warning • pull back from dismissal • next step dismissal? Appeal? • Written warning • formal, recorded during hearing. • clear communication of consequences • Verbal warning - Issued formally • away from workplace - confidential • Aide memoir - time, reason, what was communicated, next step, response. Dismissal Written warning Formal Verbal warning Feedback, staff appraisal? Normal supervision. Separation of roles (controller/friend?)

22. Reasonableness and sufficient reason Employer must act reasonably • in all the circumstances • in treating the reason as a sufficient and valid reason • circumstances incl. employer size & resources Reasonableness depends on • HOW the dismissal was carried out and • if employer acted reasonably leading up to the decision e.g. warning, chance to improve, considered for alternative work (redundancy)? Qualifiers for small firms?

23. Fairness test • sufficient reason based on equity + substantial merits? • multiple reasons - what are the principal ones! • Burden of proof - neutral but balance weighs on employer • ET is NOT an arbitrator - cannot substitute own views of “reasonable” for the employer’s • What would a reasonable employer have done in the circumstances • the right course of action to adopt? • A representative band of employers • Was it fair? • teacher slaps child’s legs? • refusal to work 3 months of Sundays?

24. Disciplinary Interview • Calling/invitation • Advanced warning • Importance of evidence • Defendant's rights – law & natural justice • Equitable procedures • Formal, systematic interview • Neutral, calm, measured • Representation • Corrective versus punitive action • Interview tension and reaction – the "afront" • Recording, communication and confirmation

25. Disciplinary Handling - Beyond the Interview • Constructive dismissal • Appeals • Intra-organisational bargaining & authorisation • Managerial powerlessness • Consistency of supervision and communication • The trust/separation puzzle

26. Complaint/Grievance Interviews • Moan, gripe, complaint • Grievance - a formal complaint made by an employee against a colleague or the organisation • Problems of formal "policy and procedure" • Problem perception, information and power/status • I'm OK, You're not OK. "Now I've got you, you SOS" • Neutral processing. • Rescue the managers and establish KARMA

27. Complaint/Grievance Interviews • Verifying the claim rights • Importance of shared, agreed information • Safeguards in procedure • Formality of the interviews • Recognising "the person" - perception of self and acting on the problem • Equity – the complainant and the "complained about" – the discrimination issue