Discuss about the Employment Law and Relations for ACAS Code and Models?
In this part of the assignment, the ACAS Code and other models like the CIPD Guidelines have been critically analysed for the purpose of identifying good practices that deal with the management of disciplining matters in organizations. In this regard, it is worth mentioning that the ACAS Code of Practice related with disciplinary and grievance procedures provides practical guidelines for the organizations that can be very helpful in dealing with these issues are the workplace.
The case of John-Charles v NHS Business Services Authority (2015) deals with best practices that are related with disciplinary proceedings. The facts are unusual in themselves but they do establish that whatever has been told by an employer to the employee regarding disciplinary sanctions, it becomes the responsibility of the employer to make sure that the employer acts according to it.
If any person or organization fails to follow the procedure provided by the Code, the fact may be considered by an employment tribunal while dealing with the relevant cases, even in the person or organization may not be liable to proceedings.
In this regard, there are certain key components that can be used for dealing with these issues. For example, it has been provided that the organizations should recognize that there are a large number of disciplinary and deviance issues that can be resolved by them informally (Beardwell and Holden, 1994). It is also worth mentioning that legally the Employment Tribunals are under an obligation to take into account, the ACAS Code of Practice when there are considering relevant cases. In this way, there are a number of potential disciplinary/grievance matters that can be resolved by the organizations informally. For example, the case is related with unsatisfactory performance or minor misconduct can generally be resolved in the best way, informally (Blyton and Turnbull, 1992). In such cases, often a quite word is enough for the purpose of improving the conduct of the performance of such an employee.
The ACAS Code of practice also prescribes the basic requirements related with fairness during disciplinary proceedings and these requirements are applicable in most of the cases. These requirements also provide the standard of reasonable behavior that can be applied in most of the cases. Under the circumstances, it is clear that the ACAS Code will help the employers as well as employees and their representatives while dealing with disciplinary matters at the workplace. On the other hand, in cases where some kind of action has to be taken, the action that can be considered as reasonable a justifiable under the circumstances depends on the individual circumstances of each case (Blyton and Turnbull, 1998). In this regard, the employers are required to deal with these issues fairly, consistently and promptly. At the same time, it is also the obligation of the employers to carry out investigations for the purpose of collecting and establishing all the facts related with a particular case.
There can be certain challenges associated with the disciplinary and diligence procedures that have been adopted by the employers. In this context, disciplinary and grievance procedures can be described as the frameworks providing a clear structure to deal with the problems that may arise in a workplace relationship, either from the perspective of the employer or employee (Stone, 1995). It is also required that this procedures should ensure that all employees are treated in the same way by the employers under similar circumstances. Similarly, the employers are also required to deal with these matters in a fair and reasonable way. The above-mentioned procedures also aim to make sure that the employers follow the present laws and in the same way, they also follow the ACAS Code of Practice. In this context, most of the employers generally have their own procedures that comply with the Code.
In this context, it is required that the disciplinary procedure allows employees to be aware of what is expected from them in context of the standard of performance or conduct. Similarly, the procedure should also be capable of identifying the obstacles that are present for individuals to achieve these standards and at the same time, they should also allow employers to take the required action (Gennard and Judge, 2002). Another requirement is that the procedure should allow the employers and employees to agree on appropriate tools and timescale for achieving improvements in the performance of conduct of an individual. The procedure should also help in resolving these matters without recourse to external processes of resolving disputes or going to an employment tribunal (Thomas, 1999). It is also very important that these procedures are capable of establishing before an employment tribunal that the employer organization had followed the appropriate procedure in a particular case if a complaint has been made by an employee regarding the way such an employee had been dismissed.
In Gurnett v ASOS.com Ltd (2010) the issue was related without providing a warning to employ regarding the possible consequences of disciplinary action. In this case, the court clearly stated that the employer is required to inform the employee from the very beginning itself regarding the possible results of a disciplinary action. For the purpose of providing a fair chance to the employees to defend the allegations in a proper way, it should not come as a surprise later on that in the proceedings, dismissal is also a possibility.
In the same way, in O’Farrill v New Manage Ltd t/a Hooks Gym London Shootfighters (2011), it was stated that the employer is required to explain the alleged misconduct in clear terms to the employee, throughout the disciplinary process. In the same way, it is also required that the employer should be consistent in his accusations against the employee (Gennard and Judge, 2002). Therefore, if any new allegations have been discovered by the employer during this stage of the investigation, they can be included in the disciplinary process but it is very important that disciplinary sanctions should be imposed against the employee only regarding the allegations that have been properly investigated and were also brought to the notice of the employee as being a part of the proceedings.
Another example where the Employment Tribunal came to the conclusion that the employer had not followed good practices was that of Campbell v Mitie Managed Services Ltd. (2009) In this case, the employer denied the employee to be accompanied during the disciplinary hearing. Therefore, although this is a statutory right, still the employers have been reminded by the ACAS Code regarding the requirement that they should allow the employees to be accompanied during disciplinary hearing. This right of the employees to be accompanied during such hearings arises when an employee has been invited by the employer to attend a disciplinary or previous hearing and such employee had made a reasonable request that he or she should be allowed to be accompanied during the hearing.
In this part of the assignment, with the help of ACAS Code and other models like the CIPD guidelines, the good practices adopted by King’s College Hospital have been analysed. For this purpose, it has been analyzed how the King’s College Hospital manages its disciplinary processes with the help of policies and procedures and the practices that have been adopted by the hospital and this regard. The procedure that has been adopted by King’s College Hospital in this regard is that first of all, an investigation is carried out by the organization. In this regard, King’s College Hospital provides that as a part of the investigation, generally it is required that the investigating manager should personally meet the employee for the purpose of obtaining their version of events. When a detailed investigation regarding the circumstances of the case is required before the disciplinary meeting, a manager may delegate responsibility to an appropriate person. On the other hand, in such a case, after investigating the matter himself, the manager may arrange that the case will be heard by some other manager of the organization. The investigations that are conducted by the Police and the Counter Fraud Team are separate from and in addition to the investigations that are taking place in the organization. The Trust can only delay the proceedings as a result of other investigations, only in case it is absolutely necessary.
the practices and procedures adopted by King’s College Hospital provide that in case where a minor misconduct has been established as part of an employee, such an employee will be invited for a meeting with the manager for the purpose of discussing unsatisfactory conduct. During such a meeting, the manager is required to hear the reasons or mitigation that has been put forward by the employee. At the same time, during such a meeting, the manager will also give advice to the employee regarding the standards of conduct that are required and also the timescale for it. The details of such an informal discussion are also required to be confirmed to the employee in writing and at the same time, there response to it should also be registered. The copy of such correspondence has to be retained by the manager.
Formal Procedure Related with Disciplinary Meetings: During all the formal stages of disciplinary procedure, after the matter has been properly investigated and it is established that the case is present against the employee, with minimal delay, a disciplinary meeting has to be arranged. It has been provided by the procedure adopted by King’s College Hospital that a reasonable notice needs to be given regarding arrangements for meeting, which includes the persons who will be present during the hearing. The manager is required to give two copies of the return details of the allegations to the employee and also any witness statements or other documents supporting the allegations. It is also required that the employee should take all reasonable steps for the purpose of attending the meeting.
It has also been provided that it is the right of the employee to be accompanied by a colleague, a friend or an accredited trade union representative. The relevant procedure in this regard is that the manager, who hears the allegations, may be accompanied by professional advisor, in case it is considered necessary. Under the hand, in case the employee had made counter allegations of harassment and bullying during the investigations, such allegations have to be heard by the manager and also by an independent assessor. Similarly, a Human Resource advisor may also be present during the meetings if a formal or a final warning can be the probable outcome of the meeting.
During the meeting, the manager is required to mention the nature of allegations and also briefly outline the case to the employee with the help of evidence available in support of the allegations. At the same time, the procedure also requires that full opportunity should be given to employ to respond to these allegations during the meeting. While the employee is required to directly respond to the questions, the representative of the employee has been given the right to outline the case of the employee and also to our questions on behalf of the employee. The procedure provides that while considering the case, the manager is required to consider the previous record of the employee and also the other factors that may be relevant in this regard.
In this light, it appears that the practices and policies adopted by King’s College Hospital work for eliminating any potential tension with other HR policies and practices like that diversity management or equal opportunities. In this regard, a responsibility has been imposed on the managers to ensure that the disciplinary procedure is applied by them fairly and also in tune with the policy related with equality and diversity in employment that has been adopted by the organization.
At the same time, the Human Resources Department of the organization monitors the application of formal procedure by age, disability, gender and ethnicity. The policy has proved to be effective in context of its relevance for the purpose of promoting race equality and in the same way, when it comes to disability and gender equality, the policy has proved to be medium impact.
At the same time, the facts of John-Charles v NHS Business Services Authority (2015) are unusual in themselves but they do establish that whatever has been told by an employer to the employee regarding disciplinary sanctions, it becomes the responsibility of the employer to make sure that the employer acts according to it.
Conclusion:
In the present report, the need for having fair and reasonable disciplinary processes have been examined.at the same time, the recent cases in which the courts have dealt with the good practices related with grievance proceedings have also been discussed.in the next part of the report, the management of grievance proceedings by King’s College Hospital have been examined.
References
Beardwell, I. & Holden, L. (1994), Human Resource Management: A Contemporary Perspective, Pitman, London
Blyton , P. & Turnbull, P. (1998), The Dynamics of Employee Relations, Macmillan, London
Blyton, P. & Turnbull, P. (1992), ‘HRM: Debates, Dilemmas and Contradictions’, in P. Blyton & P. Turnbull (eds), Reassessing Human Resource Management, Sage, London
Gennard, J. & Judge, G. (2002), Employee Relations (third edition), Chartered Institute of Personnel and Development, Wimbledon
Legge, K. (1995), Human Resource Management: Rhetorics and Realities, Macmillan Business, London
Stone, R. (1995), Human Resource Management,(second edition)., Wiley & Son, Milton
Thomas, K. (ed.), 1999, The Oxford Book of Work, Oxford University Press, Oxford
.Cases
Campbell v Mitie Managed Services Ltd ET/2406958/09
Gurnett v ASOS.com Ltd [2010] ET/3304149/2009
John-Charles v NHS Business Services Authority UKEAT/0105/15/BA
O’Farrill v New Manage Ltd t/a Hooks Gym London Shootfighters [2011] ET/3304495/2010
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