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Chris Jarvis 1 HRM Obligations, Contracts, Discipline and Grievance Handling.

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Presentation on theme: "Chris Jarvis 1 HRM Obligations, Contracts, Discipline and Grievance Handling."— Presentation transcript:

1 Chris Jarvis 1 HRM Obligations, Contracts, Discipline and Grievance Handling

2 Chris Jarvis 2 HRM 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 Chris Jarvis 3 HRM  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. Formation of contract of employment

4 Chris Jarvis 4 HRM Employment Rights Act 1996  Consolidated earlier Acts repealed in whole or in part  Unaffected  Equal Pay Act 1970  Sex Discrimination Act 1975  Race Relations Act 1976  Transfer of Undertaking (Protection of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 Chris Jarvis 5 HRM 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 Chris Jarvis 6 HRM 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 Chris Jarvis 7 HRM 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 Chris Jarvis 8 HRM 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 Chris Jarvis 9 HRM 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  Legitimate TU membership (non-membership) & activities

10 Chris Jarvis 10 HRM 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 Chris Jarvis 11 HRM 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 Chris Jarvis 12 HRM 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 Chris Jarvis 13 HRM 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 Chris Jarvis 14 HRM 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 Chris Jarvis 15 HRM 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 Chris Jarvis 16 HRM 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 Chris Jarvis 17 HRM 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 Chris Jarvis 18 HRM 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 Chris Jarvis 19 HRM 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 Chris Jarvis 20 HRM Verbal warning - noted Written warning - maybe Final Dismissal - or other Company Policy Framework - 2  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 Informal advice “a word in your ear” Formal stages Appeal? External mediation? Internal grievance procedure

21 Chris Jarvis 21 HRM Formal Verbal warning Written warning Dismissal  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. Feedback, staff appraisal? Normal supervision. Separation of roles (controller/friend?) Company Policy Framework - 3

22 Chris Jarvis 22 HRM 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 Chris Jarvis 23 HRM 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 Chris Jarvis 24 HRM 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 Chris Jarvis 25 HRM Disciplinary Handling - Beyond the Interview  Constructive dismissal  Appeals  Intra-organisational bargaining & authorisation  Managerial powerlessness  Consistency of supervision and communication  The trust/separation puzzle

26 Chris Jarvis 26 HRM 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 Chris Jarvis 27 HRM 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

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