1. Obligations, Contracts, Discipline
and Grievance Handling

2. contract - central to Er-Ee relationship
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. Consolidated earlier Acts repealed in whole or in part Unaffected
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Consolidated earlier Acts repealed in whole or in part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. be clear on what is expected of you?
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 dismissal employee 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
Principle job stake cannot be ended just by serving contractual notice.
Restraint on hire-fire employer
Does it really constrain employer’s freedom of action?

11. 1 year continuous service at date of termination. no FT/PT thresholds
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. incompetence, ill-health, other mental & physical quality
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. entitled to be given reason for dismissal.
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. “What am I being accused of”
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. sufficient reason based on equity + substantial merits?
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