Thursday, July 03, 2008

Employment Tribunals, avoid them

Written disciplinary procedures save employers time and money.

132,577claims were made to Employment Tribunals in 2006/7 to, compared with 115,039 in the previous year. Half of all claims were brought for unfair dismissal and/or breach of contract.

The Employment Act 2002 (Dispute Resolution) Regulations 2004 were intended to clarify disciplinary procedures for both employers and employees, and so avoid disputes ending up in Employment Tribunals. However, most employers would agree that the statutory procedures are confusing, time-consuming, and restrictive.

The average award for unfair dismissal in 2006/7 was £8,670, up from £7,303 the previous year.

Businesses could avoid these huge costs if they had proper documentation and procedures in place.

Effective management often relies upon being able to deal with workplace issues quickly and decisively. Employers need to resolve situations promptly where, for instance, a worker is consistently failing to perform to acceptable standards, or has high levels of absenteeism, or is disruptive. Leaving such matters unattended usually means that it becomes more difficult to deal with as time passes and almost always results in additional costs to the employer

If a good disciplinary procedure is drawn up and a reasonable set of standards is put in place, then this will assist management in taking decisive action to avoid problems building up. A disciplinary policy will also enable employers to deal with matters consistently and help avoid expensive Tribunal claims.

The policy should include examples of what may be regarded as misconduct and gross misconduct.

The ACAS code of practice uses a four-stage process to follow in cases of breach of company rules:

1.        oral warning

2.        first written warning

3.        final written warning

4.        dismissal.

Grounds for dismissal

There are potentially five fair reasons to dismiss:

• Illegality: where it is illegal for the employee to remain in the position for which h/she has been employed.
• Conduct: such as sexual harassment, theft, breach of the duty of fidelity, lateness, etc.
• Redundancy: where the work that an employee is doing has ceased or diminished or is expected to cease or diminish.
• Capability: such as incapability because of the incompetence or ill health.
• Some Other Substantial Reason: for instance, an employee's refusal to accept a relatively minor change to their employment terms.

An employer must be able to show a fair procedure as well as a fair reason for dismissal.

 
Disciplinary procedure and policy

If the following three steps are not adhered to, a dismissal may be considered automatically unfair and any compensation claim at Tribunal will be increased accordingly.

Three-step procedure

• After fully investigating the matter, notify the employee in writing, detailing the alleged offence, and invite them to a Disciplinary Hearing to discuss the matter. Tell the employee of their rights in respect of the procedure.
• Hold the hearing. Notify the employee of your decision and tell them they have the right to appeal.
• If the employee does appeal, arrange an appeal hearing with a more senior manager. The employee should be advised in writing of the outcome.

An employment tribunal will invariably render the dismissal unfair if an employer has not complied with this procedure.

Key tips:

• Clearly explain the allegation that has been made.
• Take statements from the employee and from any other witnesses.
• Give reasonable notice of the intended meeting and advise the employee of their rights.
• Have a management witness to record details of what is said at the meeting.

 

                                                           

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