Obligations, Contracts, Discipline and Grievance Handling

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)

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.

Consolidated earlier Acts repealed in whole or in part Unaffected Employment Rights Act 1996 Consolidated earlier Acts repealed in whole or in part Unaffected Equal Pay Act 1970 Sex Discrimination Act 1975 Race Relations Act 1976 Transfer of Undertaking (Protection of Employment)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

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?

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

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

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

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

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?

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?)

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

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"

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

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?

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)?

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.

“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?

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?

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”

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?)

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?

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?

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

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

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

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