Discuss about the Law for Discipline and Grievance?
It is a must for the management of all the organizations to understand the aspects of performance and behavior of the employees, and for that purpose, managers must adopt a good disciplinary procedure in the matter of discipline at work. It is necessary to form and develop good management habits to assure that procedure is implemented and that too in consistency and considering the rules of natural justice in case of any disciplinary action. Good practice in the matter of discipline adds value to the organization, and it also makes sure that employees are fairly treated and in a consistent manner and that an organization has a good business sense. The disciplinary process originated in Employment Rights Act 1996. In Section 1 of the Act, it is provided about employment rights in the statement of particulars. Section 3 of the Act provided that the statement of particulars must have all the information about applicable disciplinary rules. Employment Act 2002 has provided further to Section 3 of 1996 Act that the statement of particulars must clearly state that, if an employee is not satisfied with any disciplinary action, where can he appeal (Qc, 2002). Industrial Relations Code of Practice was introduced in 1972, which dealt with the issues of discipline and the thought that the right and wrong manner of discipline was generated (Loretto, Duncan and White, 2000). After that ACAS Code of Practice gained a lot of importance. Then, Code of Practice on Disciplinary and Grievance Procedures was introduced. ACAS Code of Practice on Disciplinary and Grievance Procedures was afforded validity in law due to an acid test that employers will be decreed on the fairness and the quality of the procedures adopted in the matter of disciplinary process and by the case of Pole v A E Dayton Services Ltd. (1987) IRLR 503, that if an organization failed to follow proper disciplinary procedure, they would not succeed to use effective defense (Gov.uk, 2016). The ACAS Code of Practice on Disciplinary and Grievance Procedures in Employment is of utmost importance for managing and resolving the disciplinary problems (Acas.org.uk, 2016). If a person fails to comply with the Code, he or the organization is not held liable for the breach of the provisions of the Code but is taken into account in the determination of the case in tribunals and arbitration.
Key points for good disciplinary procedure in the organizations
1) It is necessary to adopt a fair and effective disciplinary procedure, the one that focuses on the performance and the behavior, and not the one that imposes punishment or that which is more reliable on punishment basis.
2) The disciplinary action should be for a real and just reason. The cause of action may be in the matter of behavior or performance. The employees are entitled to know the cause of the disciplinary action taken against them (Legislation.gov.uk, 2016).
3) The statement of particulars of employee’s rights must contain all the information related to the disciplinary rules of the organization and in the case of any disciplinary action, which can they appeal for defending themselves.
4) The disciplinary rules adopted by an organization must be very clear and free from any ambiguity. It is of utmost importance to regularly monitor the rules and procedure of the organization. The employees must understand all the rules to be aware of what is expected of them and how they will be governed by the disciplinary process in the matter of performance, behavior and attendance.
5) Counseling is the main part of disciplinary procedure, as it gives an opportunity to discuss the matters related to performance and behavior with the employees, before initiating disciplinary action (Paget, 2010).
6) The preparation and conduct of the disciplinary interviews must be done in a professional manner.
7) The employees are entitled to know the reason for disciplinary action, to challenge the decision of the management, to appeal against the decision of management, if not satisfied.
8) The highest priority should be given to managing the absence and make policies that are considered appropriate for reducing the absentees.
9) The disciplinary rules and procedure should be fair and effective.
Though the principles laid down for the disciplinary procedure are given validity, it is argued by some that there should be more clarity and that the rules must be framed in such a way that they are reflections of the current practice of the industry (Mander, 2015). In the case of Deco v Joinson (1991) IRLR 63, the union representative was dismissed for using his employer’s computer and the password of another employee on the grounds of gross misconduct (Yew, 2013).
EAT held that, though in the case of C A Parsons & Co Ltd v McLaughlin (1978) IRLR 65, it was held that certain things like not to access any one’s mail are so obvious, that it does not require to form a rule, but EAT stated in the case of Denco that the management must clarify to the employees that interference of any kind with anyone’s computer may attract penalties, and it should be in the written form, and kept near the computers.
ACAS has offered to guide the organizations in good disciplinary procedure:
It should be in a written form, it should not discriminate, the matters should be dealt without causing delay, maintain the confidentiality of records and statements of the proceedings. Inform the employees about the disciplinary action that may be taken against them, the workers should be aware of the levels of management, who have authority to take different actions in respect of discipline, the employees must be given an opportunity to discuss their matter before reaching at any conclusion, to make sure that the issues are thoroughly investigated before taking any action, the workers must know that they have a right to appeal, if dissatisfied with any disciplinary action, to see that an employee has a right to be accompanied by any person at the disciplinary hearing, may be a member of trade union
The principles laid down are clear and adequate, but are dealt by the tribunals discreetly.
In the case of John Charles v NHS Business Services Authority (2015), it was held that the dismissal was unfair, as the employer did not permit an opportunity to the employee, his right to argue his case. The disciplinary process adopted by HR was not breached for disclosure of warning in writing (Employmentcasesupdate.co.uk, 2016).
In the case of Ramphal v Department for Transport, Employment Appeal Tribunal held that in the case of a dismissal, Human Resources should be careful and limit its advice in the matter of legal issues and the correct procedure to make sure that they are consistent with any of their previous decisions.
Conclusion
Though the disciplinary rules and procedure of ACAS are adopted by many organizations, it is important to cultivate a good relationship between the employer and employee, it is necessary that disciplinary rules must go along with the rewards and not only imposition. Every organization must have their own set of rules that work towards the progress of their business.
The disciplinary procedures and rules of many organist ions are effective and fair; the rules are made in consultation with the employees for a good relationship between the employer and employee. Guys and St Thomas NHS Trust is one such organization where the rules are made in consultation with the staff (Nhs.uk, 2015).
The policy was developed in partnership by the management and the employees in order to give an assurance to the employees that they are treated fairly and in a consistent manner to make them aware of the required standards of the organization.
The Policy
It is the policy of the company to manage the disciplinary issues fairly and effectively. It is their policy to handle the issues informally generally, but in case, the informal measures do not solve the issues in respect of behavior or standards, a formal procedure is initiated. In the case of a serious breach, the formal action is initiated.
It is the responsibility of the organization to maintain and set the standards in the matter of performance within the workplace for making it sure that disciplinary rules and the disciplinary procedure both are implemented and followed properly (Fowles, 2005). It is the responsibility of employees to act and abide by the disciplinary rules for the purpose of maintaining the standard set by the Trust. The issues are dealt without any delay. An employee is given an opportunity to be heard and put forth their case, before deciding the case. It is the policy of the Trust that unless and until the facts have been established, no disciplinary action is taken against the employee. The employees are given an explanation in writing if any disciplinary action is taken and it is also clarified what is expected from them. ACAS Code of Practice Disciplinary Procedure is adopted. It is the responsibility and a duty of the manager to inform the employees about the policies, rules and procedures of disciplinary actions and to make sure that all the facts related to hearing are considered, and an employee is given a chance of being heard and put forth his case, before initiating any disciplinary action. If the case is of minor misconduct or the behavior that is not satisfactory, it has informally dealt with the issue (Clark, 2016).
Notice is a note of the discussion, a copy of which is provided to the employee. When the informal action does not solve the issues, or in the case of serious misconduct, the employee is informed about the necessity of the formal action. A decision as to proceed with disciplinary action is taken only after a thorough, and proper investigation is carried out. The employee is informed and advised about the misconduct in a written form. An employee is given the copies of documents to be used at the hearing. The result of the disciplinary hearing is also given confirmation in written form.
In the formal disciplinary procedure, there are three levels of sanctions; the first level is a written warning, the second final written warning and the third is dismissal. In the extra ordinary circumstances, it is at the discretion of the Trust to consider the alternatives to dismissal in case the actions for dismissal falls short. If the Trust considers alternative to dismissal is proper, an employee is given a final warning in writing with a maximum of twenty-four months. In the case of formal warnings, if an employee’s behavior is not acceptable or if an employee commits misconduct. When he is at a final warning level, than a dismissal order is given (Guysandstthomas.nhs.uk, 2016).
Though a very good disciplinary procedure is adopted, there are a number of cases in the tribunal and court. It, therefore, requires a comprehensive set of rules to minimize the disciplinary issues.
In the case of Majrowski v Guys and St Thomas NH Trust (2005), the Court of Appeal held that the employer was vicariously liable for the harassment committed (Publications.parliament.uk, 2016).
Conclusion
It is concluded that a good disciplinary procedure is a must for any organization. Guys and St Thomas NHS Trust have adopted the ACAS Code of Disciplinary Procedures, but the disciplinary action only for imposing punishment comes along with the drawbacks. It is recommended that employees must be rewarded for improvement in performance and behavior simultaneously with the notices of improvement. Only relying on the punishment can affect the employer-employee relationship. It is necessary for the betterment of an organization to adopt the policy of reward and punishment. It must go hand in hand for the disciplinary issues. It is a very good practice of the trust to give an opportunity to the employee of being heard before initiation of any disciplinary procedure. The rules are drafted keeping the staff in partnership, so that they are fair and effective. This is the best thing that any organization can do for the expected standards of performance and conduct.
However, by the given case of Marjorie v Trust, it is clear that the disciplinary rules must be framed for the issues between the employees., thus, it is recommended to make disciplinary rules arising out of issues between two employees. The disciplinary rules, in order to be effective, must be made in consultation with the employees, as is done by Guys & St Thomas Every organisation is different from the other, hence it is suggested that every organisation must have a set of disciplinary rules that best suits their business and better employer-employee relationship.
References
Acas.org.uk. (2016). Discipline and grievance – Acas Code of Practice | Acas. [online] Available at: https://www.acas.org.uk/index.aspx?articleid=2174 [Accessed 27 Mar. 2016].
Clark, I. (2016). ACAS code of practice | Morton Fraser | Edinburgh and Glasgow | Solicitors | Estate Agents | Wealth Managers. [online] Morton-fraser.com. Available at: https://www.morton-fraser.com/knowledge-hub/acas-code-practice-0 [Accessed 27 Mar. 2016].
Employmentcasesupdate.co.uk. (2016). John-Charles v NHS Business Services Authority UKEAT/0105/15/BA. [online] Available at: https://www.employmentcasesupdate.co.uk/site.aspx?i=ed28629 [Accessed 27 Mar. 2016].
Fowles, M. (2005). Majrowski v Guys and St Thomass NHS Trust – 16th March 2005 – Court of Appeal. [online] Brownejacobson.com. Available at: https://www.brownejacobson.com/insurance/training-and-resources/legal-updates/2005/04/majrowski-v-guys-and-st-thomass-nhs-trust-16th-march-2005-court-of-appeal [Accessed 27 Mar. 2016].
Gov.uk. (2016). Solve a workplace dispute – GOV.UK. [online] Available at: https://www.gov.uk/solve-workplace-dispute/formal-procedures [Accessed 27 Mar. 2016].
Guysandstthomas.nhs.uk. (2016). Policies and procedures. [online] Available at: https://www.guysandstthomas.nhs.uk/education-and-training/dental-education/education-centre-dental-nurses/policies-and-procedures.aspx [Accessed 27 Mar. 2016].
Legislation.gov.uk. (2016). Employment Rights Act 1996. [online] Available at: https://www.legislation.gov.uk/ukpga/1996/18/contents [Accessed 27 Mar. 2016].
Loretto, W., Duncan, C. and White, P. (2000). Industrial relations codes of practice: the 1999 Age Discrimination Code in context. Employee Relations, 22(2), pp.146-163.
Mander, P. (2015). HR did not breach disciplinary process by disclosing written warning – People Management Magazine Online. [online] Cipd.co.uk. Available at: https://www.cipd.co.uk/pm/peoplemanagement/b/weblog/archive/2015/12/17/hr-did-not-breach-disciplinary-process-by-disclosing-written-warning.aspx [Accessed 27 Mar. 2016].
Nhs.uk. (2015). Overview – Guy’s and St Thomas’ NHS Foundation Trust – NHS Choices. [online] Available at: https://www.nhs.uk/Services/Trusts/Overview/DefaultView.aspx?id=1629 [Accessed 27 Mar. 2016].
Paget, P. (2010). Recent case highlights constructive dismissal and ACAS code anomaly. Strategic Direction, 26(9).
Publications.parliament.uk. (2016). House of Lords – Majrowski (Respondent) v. Guy’s and St. Thomas’ NHS Trust (Appellants). [online] Available at: https://www.publications.parliament.uk/pa/ld200506/ldjudgmt/jd060712/majro-1.htm [Accessed 27 Mar. 2016].
Qc, B. (2002). The Employment Act 2002 and the Crisis of Individual Employment Rights. Industrial Law Journal, 31(3), pp.245-269.
Rheumatology.org.uk. (2016). Guys and St Thomas NHS Foundation Trust | The British Society for Rheumatology. [online] Available at: https://www.rheumatology.org.uk/publications/best_practice/guys_and_st_thomas_nhs_foundation_trust.aspx [Accessed 27 Mar. 2016].
Wynn, M. and Pitt, G. (2010). The Revised Acas Code of Practice 2010 on Time Off for Trade Union Duties and Activities: Another Missed Opportunity?. Industrial Law Journal, 39(2), pp.209-217.
Yew, J. (2013). Practical Law – Books. [online] Uk.practicallaw.com. Available at: https://uk.practicallaw.com/books/9781845928339/chapterc1 [Accessed 27 Mar. 2016].
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