Contents tagged with Disciplinary Procedure
For an employer, nothing is more frustrating than an employee that has been dismissed for "blatant misconduct" yet has a potential claim for unfair dismissal because the correct procedures were not followed. Here are top 10 examples of how disciplinary procedures can go wrong for employers:
1. HR’s role in disciplinary proceedings
When carrying out disciplinary investigations and hearings managers often seek guidance from HR on policy and procedure. However, sometimes HR go further and assess the employee’s credibility or culpability, which they cannot do.
2. Disciplinary policy not covering the reason for the dismissal
In McElroy v Cambridge Community Services NHS Trust an NHS worker was dismissed for coming to work smelling of alcohol. The Trust's substance … more
As we count down to the New Year, let’s remind ourselves of 2015’s key judgments. They include cases on: whistleblowing, working time, annual leave during sickness absence, holiday pay, disability discrimination, redundancy consultations, recruitment, and the role of HR in disciplinary proceedings.
1. HR’s role in disciplinary proceedings
In Ramphal v Department for Transport it was held by the Employment Appeal Tribunal (EAT) that a dismissal will be unfair if the decision to dismiss an employee is improperly influenced by HR. Thus, HR should refrain from lobbying managers to reshape their view on culpability and limit their advice essentially to questions of law, and procedures and processes.
2. Right to be accompanied: a new type of claim?
It was held by the … more
It is fair to say that when it comes to the unfortunate business of disciplinary matters that a great many employers and employees are aware in advance as to the level of support an employee may have in the room during the relevant meeting(s).
The statutory minimum provides that a work colleague or trade union representative may be brought in by the employee being disciplined as a companion, an officious note taker and asker of questions that otherwise may not have been asked. Legally compliant employment contracts and disciplinary policies generally echo this position of course.
There are however occasions where individuals find that they are without either the support of a trade union or an appropriate colleague. In such circumstances we often get the common question as to can the … more
In the ideal world of employment, employee behaviour would be flawless, punctuality would be the norm, absences would be minimal, if not rare, and the standard of work would be exceptional. To the contrary, in the real world of employment, most employers will be aware that this is not always the case and, in some circumstances, issues may arise which force an employer to take disciplinary action.
An essential point to note is that if an employer determines that there is a disciplinary issue at hand following a thorough investigation, it is key that the employer conducts a fair and well-prepared disciplinary hearing before any disciplinary action can lawfully be taken. This is not only representative of excellent HR practice but a way to ensure that employees are able to offer … more
As the festive season gets into full swing next week, many of us will be preparing ourselves for the Christmas party, where of course many of us intend to relax with colleagues over one or two, or in some cases, twelve drinks.
This time of year is great for letting your hair down; however the concept of ‘liquid courage’ usually leads to no small amount of questionable antics, including but not limited to ritual abuse of the photocopier and a kiss or two under the mistletoe.
Therefore as we prepare for our own Christmas party I have put together a few tips for ensuring a smooth office do!
If you are worried about getting far too drunk then perhaps avoid alcohol or the party altogether. You could also consider stopping drinking after a certain time or … more
I think it’s safe to say that every business will have employees that will avidly follow the World Cup. So the challenge for many of you will be how to balance the wishes of your staff with the needs of your business during the next couple of weeks.
Here is some guidelines of good practice:
1. Communicate your approach to annual leave, unauthorised absence and use of the internet during the period.
2. Be flexible with annual leave requests particular after a match day, this will reduce unauthorised absence, sickness and ensure that performance remains at optimal levels. Also ensure that due consideration is given to all applicants, including those who support other countries; this will avoid any allegations of discrimination.
3. … more
Where an employer has several concerns about an employee’s conduct, there is the temptation to combine the incidents to justify disciplinary action for ‘gross misconduct’. However the question that employers should ask themselves is whether the sanction of dismissal is fair in the circumstance, particularly where dismissal is without notice or payment in lieu of notice.
This was recently examined by the Employment Appeal Tribunal (EAT) in the case of Beardwood v Ham. In this case, a school teacher, Ham, was accused and dismissed for gross misconduct due to four conduct offences the most serious of which related to safeguarding issues. However at the appeal stage the issue relating to safeguarding, was only partially upheld but the original sanction remained.
When … more
It is generally accepted that a dismissal is fair where an employer has conducted a proper investigation and reasonably concluded the allegation has been proven based on the evidence before them. However, what happens when a dismissed employee's professional body decides to take no action over the same incident? Does this make the dismissal outside the range of reasonable responses?
The Employment Appeal Tribunal (EAT) dealt with this issue in the recent case of Bryant v Sage Care Homes Ltd
Ms Bryant had worked as a registered nurse for 40 years with an unblemished record.
Ms Bryant began working at Sage Care Group (‘Sage’) in 2005 often deputising in the manager’s absence. On 6 June 2009 while carrying out the drug round, … more
Some industries use slightly modified disciplinary procedures when dealing with capability and conduct. However does this give rise to employers being able to freely choose which procedure to use with which employee?
This issue was dealt with in the Court of Appeal in Welch National Opera Ltd v Johnson which looked at the interplay of two disciplinary procedures, following the dismissal of the principal oboist in the company’s orchestra.
Mr Johnston had been principal oboist since 1974, but difficulties arose between him and the opera’s musical director, which lead to criticisms of Mr Johnston’s performance. The company had two disciplinary procedures, a standard procedure, and a “poor artistic performance” procedure agreed with the Musicians … more
Where an employee has been disciplined once for failing to deliver a project to a long standing client, can an employer discipline them again for the same offence, if a year later the same client later decides to terminate their business contract with the company citing the earlier offence as the reason?
The EAT examined whether an employee could be disciplined twice for matters arising out of the same facts, particularly if the second proceedings resulted in a dismissal, in the recent decision of Christou & anor v London Borough of Haringey. They held that the question of fairness of the dismissal falls to be determined under the test set out in section 98(4) Employment Rights Act 1996 (ERA), that is ‘whether in the circumstances (including the size and administrative … more