Presentation on theme: "Obligations, Contracts, Discipline"— Presentation transcript:
1Obligations, Contracts, Discipline and Grievance Handling
2contract - central to Er-Ee relationship Backgroundcontract - central to Er-Ee relationship(offer, acceptance, consideration) negotiated/agreedplus common law/statutory regulationsocio-econ. exchange - open-ended unlike commercial contractsjob contracts & managerial power/authorityan equal balance in service relationship?subordination to reasonable & legitimate authorityemployer determines organisation of work and standards (reasonable)delivery of performance, motivation + loyalty, commitmentcommon law duties of employer & employeeExpress and implied terms (general obligations)
3Formation 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” 1940subject to statutory regulationChanges to the Contract?mutual consent?within scope of effort-reward relationship?within employer’s (reasonable) operational discretion?Vicarious liability & Negligenceemployer liable for negligent/wrongful acts & omissions of employee in course of employment.
4Consolidated earlier Acts repealed in whole or in part Unaffected Employment Rights Act 1996Consolidated earlier Acts repealed in whole or in partUnaffectedEqual Pay Act 1970Sex Discrimination Act 1975Race Relations Act 1976Transfer of Undertaking (Protection of Employment) Regulations 1981Disability Discrimination Act 1995
5be 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?
6Employer obligations to employee pay contractually agreed remunerationprovide work?give lawful instructions onlytreat reasonably with respect, trust confidenceprovide sound supervision job instruction?observe provisions relating to sickness, holiday pay, hours.permit time-off for public duties (statutory)indemnify / insureprovide references?provide for employee health, safety welfare provide reasonable safe working conditions (see statutory provisions)Not infringe Human Rights
7Employee obligations to employer ready, willing available to do workwork for employer in employer’s timeuse care, skill, be reasonably competent not to be unduly negligentobey reasonable, lawful instructionstake care of employer’s property ( good will?)Fidelity: act in good faith, respect values confidencesAbsences?Industrial action?Response to operational change?Justifiable refusal to obey?exceptional dangerorder would constitute a legal offence
8Unfair 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
9Automatic 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 & supportHealth & safety s.100right not to be dismissed or subject to detriment foracting as safety representative and carrying out designated activities to prevent/reduce risks & dangersPublic Information Disclosure Act 1998.Legitimate TU membership (non-membership) & activities
10No right NOT TO BE Dismissed. without good reason (ERA 1996)complaint & redress to Employment TribunalPrinciple job stake cannot be ended just by serving contractual notice.Restraint on hire-fire employerDoes it really constrain employer’s freedom of action?
111 year continuous service at date of termination. no FT/PT thresholds Eligibility?1 year continuous service at date of termination.no FT/PT thresholdsno service requirement for inadmissible reasonsclaim within time limits (reasonably practicable)Exclusions (Human Rights Act?)
12Valid reasons for dismissal Employer must show that reason or principal reason falls within ERA s96Conductcommon, leading to the most complaints for unfair dismissalCapability or qualification for performing the workemployee unable to do job/work satisfactorily or does not have qualifications for it. Illness & frustration of contractRedundancyGenerally not grounds for U/F dismissal claim.Statutory requirementContinued employment contravenes statutory duty e.g. driver’s licence, work permit.Some other substantial reason
13Conductrefusal to obey reasonable instructionsintroduction of a new working system?timekeeping, absenteeismbreach of exclusivity, trust and confidentstealing from employer (what does this comprise?)breach of safety instructions, negligence, acts and omissions.immorality, drunkennessTheft - what is theft from employer?Communicating, maintaining and demonstrating behaviours associated with a "Code of Conduct"
14incompetence, ill-health, other mental & physical quality Capabilityincompetence, ill-health, other mental & physical qualityinability to develop sound relations with others?reasonableness + reasons ?appraisal processes, training & supervisiondegrees of incompetence .... one serious lapse?Does ill-health justify an employer terminating the contract?informed judgement - circumstances & optionsinvestigate the permanently unfit to workQualifications relating to aptitude and abilityDiploma, tech. certificate, license/permit or professional qualification.must be substantially concerned with job aptitude or ability
15entitled to be given reason for dismissal. Reasons in writingentitled to be given reason for dismissal.request written reasons within 14 days (pregnancy excl.)But not if alleging constructive dismissalemployer can provide written statement voluntarilyEmployees dissatisfied with not receiving a statement or believe it inaccurate - go to a tribunalWhat 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?
16Discipline Guidelines (ACAS) Why disciplinary rules and procedures?promote fairness & order in treatment of individuals & conduct of employee relationsassist organisation to operate effectivelydefine basic expectations and set standards of conduct at workprocedure to ensure that standards are adhered toa fair method of dealing with alleged failure to observe themFunctional, normative, prescriptiveconfirms managerial responsibility/prerogativea conflict reduction mechanism in both unitary & pluralistic environmentsCode of “work place ethics” (moral behaviours)?
17Procedural FairnessEmployer - to inform of rules, procedures, consequences, penaltiesFair, objective, no discriminationAvailable evidence + probability in the circumstances. Employer hasgenuine belief in the misconduct?reasonable evidence and investigation?Substantial equity and merits of the case > uniformity of treatmentNotice of proceedings and preparednessDo 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 decidingavoid hasty conclusions e.g. assumptions about prior disciplinary warnings, say, poor time-keepingAppeals?
19Company 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 & tolerancesweak-fit between duties/standards, performance/ behaviourcompany’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-builtcriminal action? outside workplace?
20Company Policy Framework - 2 Appeal?External mediation?Internal grievance procedureGrievous breach - all stepsRecorded warnings + guidance on corrective actionWarning shelf-lifeAppeal? Via grievance procedure?Let the punishment fit crimeRepresentationWhich managers involved at which stage?Correspondence & documentationDismissal- or otherFormalstagesWritten warning- maybe FinalVerbal warning- notedInformal advice“a word in your ear”
21Company Policy Framework - 3 Summary Dismissalwith/without noticesuspension - with or without pay?transfer, demotion, fine?Final written warningpull back from dismissalnext step dismissal? Appeal?Written warningformal, recorded during hearing.clear communication of consequencesVerbal warning - Issued formallyaway from workplace - confidentialAide memoir - time, reason, what was communicated, next step, response.DismissalWritten warningFormalVerbal warningFeedback, staff appraisal?Normal supervision. Separationof roles (controller/friend?)
22Reasonableness and sufficient reason Employer must act reasonablyin all the circumstancesin treating the reason as a sufficient and valid reasoncircumstances incl. employer size & resourcesReasonableness depends onHOW the dismissal was carried out andif employer acted reasonably leading up to the decision e.g. warning, chance to improve, considered for alternative work (redundancy)?Qualifiers for small firms?
23sufficient reason based on equity + substantial merits? Fairness testsufficient reason based on equity + substantial merits?multiple reasons - what are the principal ones!Burden of proof - neutral but balance weighs on employerET is NOT an arbitrator - cannot substitute own views of “reasonable” for the employer’sWhat would a reasonable employer have done in the circumstancesthe right course of action to adopt?A representative band of employersWas it fair?teacher slaps child’s legs?refusal to work 3 months of Sundays?
24Disciplinary Interview Calling/invitationAdvanced warningImportance of evidenceDefendant's rights – law & natural justiceEquitable proceduresFormal, systematic interviewNeutral, calm, measuredRepresentationCorrective versus punitive actionInterview tension and reaction – the "afront"Recording, communication and confirmation
25Disciplinary Handling - Beyond the Interview Constructive dismissalAppealsIntra-organisational bargaining & authorisationManagerial powerlessnessConsistency of supervision and communicationThe trust/separation puzzle
26Complaint/Grievance Interviews Moan, gripe, complaintGrievance - a formal complaint made by an employee against a colleague or the organisationProblems of formal "policy and procedure"Problem perception, information and power/statusI'm OK, You're not OK. "Now I've got you, you SOS"Neutral processing.Rescue the managers and establish KARMA
27Complaint/Grievance Interviews Verifying the claim rightsImportance of shared, agreed informationSafeguards in procedureFormality of the interviewsRecognising "the person" - perception of self and acting on the problemEquity – the complainant and the "complained about" – the discrimination issue