DISCIPLINARY AND GRIEVANCE MATTERS, DISMISSAL AND SETTLEMENT

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DISCIPLINARY AND GRIEVANCE MATTERS, DISMISSAL AND
SETTLEMENT CLARE BOOTH CHARITY TEAM
AT RUSSELL-COOKE
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Introduction

• Employment Act 2002 - statutory procedures
• Employment Rights Act 1996 -fairness
• When and how to settle

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DDP

• conduct
• capability
• non renewal of fixed term contract
• redundancy
• retirement
• action short of dismissal

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Standard Procedure

• Step 1
• employer writes to employee setting out concerns
• Step 2 - meeting
• reasonable notice
• employee should attend
• notification and right of appeal
• Step 3 - appeal
• does not need to take place prior to dismissal
• final decision to be notified

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Failure to follow procedures

• dismissal is automatically unfair (subject to a
  years employment)
• If employer has followed statutory procedure but
  there is still unfairness eg procedural errors,
  dismissal will not be automatically unfair if
  employer would have still dismissed
• uplift or reduction of 10-50
• 4 weeks additional pay for failure to comply with
  the statutory procedure

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Statutory Grievance Procedure

• standard
• modified

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Standard Procedure

• Step 1
• Employee submits grievance in writing
• Step 2 - meeting unless
• the employee has informed the employer of the
  basis of the grievance
• the employer has had a reasonable opportunity to
  consider his response
• the employer informs of decision and right of
  appeal

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Standard Procedure

• Step 3
• employee informs employer of appeal
• further meeting
• final decision

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Modified

• Employee no longer employed and either
• it is not reasonably practicable to use the
  standard procedure and
• the parties agree in writing

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Modified Procedure

• Step 1
• Employee submits grievance in writing
• Step 2
• Employer submits written response

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Failure to follow procedures

• Employee (and former employee) debarred from ET
  unless they have lodged a stage 1 grievance
  letter and waited 28 days for a response
• Award reduced by 10-50

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• Disciplinary Procedures
• help the Employer deal fairly and consistently
  with disciplinary problems
• to ensure a disciplinary dismissal is fair
• in accordance with natural justice

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Who does the Procedure apply to?

• permanent and temporary employees
• consultants?
• casuals/bank staff?
• volunteers?
• agency staff?

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Flexibility

• not too prescriptive
• avoid outside referees
• allow progression

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Identifying the Problem

• misconduct
• serious or gross misconduct
• poor performance
• capability
• is there likely public relations fall out/impact
  on funders?
• what steps are necessary to fully investigate?
• are there special factors eg pregnancy, TU rep or
  special protection?

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Implementing the Procedure

• consider length of service
• is urgent action required?
• is suspension required to ensure all necessary
  information is obtained?

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Investigation

• genuine belief in employees guilt
• held on reasonable grounds
• having carried out a reasonable investigation

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The Investigation

• establish who is responsible for taking action
• interview the employee
• interview other relevant staff/service users
• assemble relevant documents
• write to the employee

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Write to Employee

• which potentially fair reason?
• incapability
• misconduct
• redundancy
• contravention of a duty
• SOSR
• concerns
• include evidence
• date, time and place of hearing
• possible consequences
• right to be accompanied

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The Hearing

• introductions and role of person accompanying
• employer opens the employers case
• cross-examination by employee
• the employees case
• cross-examination by employer
• employer closes
• employee closes

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Deciding the Penalty

• nature of offence
• background circumstances
• previous disciplinary proceedings outstanding and
  previous warnings
• how disciplinary issues treated in the past
• policy prescribe a penalty for particular
  offences?
• excuse or mitigation by employee

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Gross Misconduct

• misconduct serious enough to destroy the contract
  between employer and employee
• break down the trust and confidence between them
• did the employee know it was gross misconduct?
• reasonableness

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Fairness

• reason
• band of reasonable responses
• includes situation leading up to decision

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Relevant Factors

• size and administrative resources of Employer
• relevant Code of Practice
• procedural defects
• consideration of alternatives to dismissal
• length of service
• consistency

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Capability

• honest belief
• supported by evidence
• reasonable grounds for belief

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Capability - Fair Procedure

• identify areas of concern
• offer guidance, supervision, training
• target setting
• warn employee of consequences of failure to
  improve
• regular review
• consider redeployment NB contractual provisions

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Ill Health

• the nature of the illness
• length and frequency of absences
• likely length of continuing or future absences
• employers need to have work done by employee
• effect of the absence on other workers

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Ill Health - Fair Procedure

• consult with Employee
• obtain medical evidence
• warnings
• consider alternatives to dismissal
• consider impact of DDA

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Misconduct

• genuine belief
• based on reasonable grounds
• reasonable investigation
• followed a fair procedure
• band of reasonable responses

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Fair Procedure

• Clear rules and sanctions for breaches
• consistent application
• giving the Employee the opportunity to respond
• taking account Employees representations before
  making a decision
• determining appropriate sanction
• reasons for dismissal
• right of appeal

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SOSR

• business reorganisation
• temporary employment
• fair procedure
• suitable alternative employment
• breakdown of trust and confidence
• breakdown of working relationship

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SOSR - Fair Procedure

• consult with employees
• consider and respond to their representations
• consider alternatives to dismissal

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The Employees Remedies

• breach of contract?
• Unfair dismissal
• compensation
• reinstatement
• re-engagement
• interim relief

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Basic Award

• A weeks pay for each year of service under 41
• 1½ weeks pay for each year age 41-64
• maximum 290
• maximum 20 years

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Compensatory Award

• loss of earnings from dismissal to date of
  hearing
• future loss of earnings
• loss of pension
• expenses incurred as result of dismissal
• loss of statutory rights
• occasionally compensation for distress, damage to
  reputation, etc

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Maximum Award for Unfair Dismissal

• basic award 8,700
• compensatory Award 58,400
• total 67,100

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Automatic Unfair Dismissal

• health and safety reasons
• trade union reasons
• employee representative
• pregnancy, maternity, parental and dependant care
  leave reasons
• whistle blowers
• fixed term rights
• part time workers rights
• working time
• NMW
• assertion of a statutory right
• seeking to exercise right to be accompanied

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Settlement

• Dangers
• - without prejudice discussions
• - inviting an employee to resign
• Out of date precedents

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Twin track approach

• Open
• Without prejudice
• Trustee committee?
• Trustee decision on settlement?

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Compromise agreements

• Must satisfy conditions in Section 203 ERA 96
• Which claim should be compromised?
• - Lunt
• - Hinton
• - how much to pay
• Tax treatment

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• Clare Booth
• Charity Team
• Russell-Cooke
• boothc_at_russell-cooke.co.uk
• T 020 8394 6498