Don't ignore warning signs of staff strife

Friday, June 7, 2013

Disciplinary and grievance.' Two words your average print boss will be none too fond of, standing as they do for pretty much everything that could go wrong with a company HR-wise.

And indeed the term does cover a broad church of situations; from dismissing an employee for poor performance, to the employee themselves being dissatisfied with the management or with their fellow employees.

But there is good reason that such a wide range of scenarios are often described with this one catch-all term: although it is a different party who is unhappy – the manager or the employee depending on whether the issue is disciplinary or grievance-related – there can, in fact, be a fair amount of crossover.

For example, if when disciplining an employee for not doing their job properly, the employee points out that they expressed dissatisfaction with not being given sufficient training some time ago, both parties may bear some blame.

And in fact, the company’s approach to both disciplinary and grievance scenarios – of implementing a formal procedure for each – should be very similar.

Indeed, not doing this, or rather not being legally compliant in these areas, could prove very costly. Should a matter end up at an employment tribunal the maximum limit for the so-called ‘compensatory award’ for unfair dismissal is currently £74,200.

More worryingly still, discrimination claims have no upper limit on compensation. The same applies to dismissal for health and safety reasons or for whistle-blowing. Furthermore, as a general rule, each party at an employment tribunal bears its own costs, whatever the outcome.

For this reason, employers don’t always use lawyers unless a claim is especially complex, of very high value or has reputational issues for the company, preferring instead to be represented by a member of staff with HR responsibilities. Employers also frequently decide to settle out of court as a result of realising that defending a claim could prove uneconomic.

But, although the odd high-profile discrimination or whistle-blowing claim has run into millions of pounds, most compensation awarded in fact involves relatively modest amounts. Geoffrey Mead, employment partner at law firm Eversheds, points out that the median award for unfair dismissal claims is only just over £5,000 and that as few as three in 1,000 claimants actually receive more than their annual salary in compensation.

Mead says: "An employment tribunal compensates someone according to loss of income and expenses incurred. So if, for example, an employee loses their job but walks straight into a new one, they will get much less than if they had been unemployed for some time. Discrimination also tends to be calculated according to loss of earnings, so the amounts involved may be similar, although employees might get typically in the region of £5,000 to £10,000 extra for injury to feelings."

Make it a priority
Nonetheless, all printers should make it a high priority to ensure that they have the right policies in place to resolve issues before they result in tribunal cases. Even if a firm has no more than a couple of employees, an important starting point is to have a written disciplinary and grievance procedure which, at the very minimum, complies with the Advisory, Conciliation and Arbitration Service (Acas) Code of Practice. The documents can be drawn up in-house and tailored to suit the business, but it is advisable to take legal advice to safeguard against meanings becoming distorted.

"I know that small firms tend to think that the less they have on paper, the happier everyone is," says Mike Emmott, adviser on employee relations at the Chartered Institute of Personnel and Development (CIPD), "but there’s no humiliation in just accepting that problems can arise in the best managed organisations. A basic policy can tell people what to do if they have a concern and who to go to, and it may only need to be one page."

In particular, such a written procedure should spell out that employees will be given ample opportunity to discuss allegations made about them at a meeting, plenty of time to prepare for that meeting and the chance to appeal the outcome. This will stop printers used to being entrepreneurial and independent short-circuiting some of the processes involved.

Mercury Search & Selection managing director Dani Novick cites the case of a printer who had fired an underperforming salesperson within a week of them failing to turn around their underperformance. The employee, who had been with the firm for four years and was approaching retirement age, brought both an unfair dismissal and age discrimination claim.

"The employer, who eventually settled out of court, should have put the matter in writing, highlighted areas of underperformance, and given the employee the chance to respond and be represented," she says. "They then had the responsibility to work with the employee to put it right. You can set the timescales according to the particular issue, and these should be stated in the policy. In this case they should have had a minimum of a month."

It is also essential that the employer doesn’t give the impression their mind has been made up before the meeting. If, for example, a manager emails HR saying that an employee is guilty of something and asking them to arrange a meeting to dismiss them, then that email could come back to haunt the company at a tribunal.

Katherine Maxwell, employment partner at Moore Blatch Solicitors, cites a classic example of where an employer can go wrong as being when an employee is caught red-handed assaulting someone else. If the employer just concludes that it’s misconduct and fires them, that will constitute unfair dismissal.

Instead, they must fully investigate the situation and put together a letter, detailing the basis of the allegation and giving notice of the meeting. They should then consider what the employee says at the meeting, together with their length of service and disciplinary record, before deciding what the outcome should be. This is an extreme example, but it illustrates how disciplining an employee and properly listening to their potential grievances are very much two sides of the same coin.

In the above scenario, a proper procedure doesn’t, however, mean that someone who is indulging in violent behaviour should be given carte blanche to continue to wreak havoc in the factory. The employer does have the power to suspend them immediately and require them to remain at home before beginning its investigation.

Anne Copley, head of legal services at the BPIF, stresses the importance of employers never taking anything for granted. She refers to the case of a printer who sent a letter via recorded delivery to an employee detailing the disciplinary meeting they were due to attend. As the employee didn’t respond, the company felt within their rights to dismiss them; they weren’t cooperating so, in their eyes, all they could do was consider the information they already had. But in the eyes of the court, the fact that the employee hadn’t signed for the letter meant the company had not implemented a thorough procedure, and the employee was able to bring a successful tribunal claim.

Copley also recalls an example of a printing company employee who had a request to take a day off to watch a football match declined. On the day of the match the employee phoned in sick, so the suspicious employer invited them to attend a disciplinary meeting, equipped with the perfect ammunition, in a more complacent boss’s eyes: a photograph in the local newspaper accompanying the match report in which the employee was visible.

Fortunately, the employer showed the employee the photo in advance of the meeting and this gave the employee the chance to explain that the photo had been taken several years ago and that the newspaper sometimes reused it to accompany match reports. This claim turned out to be true, and the employee had in fact been genuinely sick. But if the employer had sacked the employee without first showing them the photo, the employee could have claimed unfair dismissal.

Assume nothing
This same approach of not assuming anything until a fair hearing has been given, should be applied to grievances. The term ‘grievance’ can refer to virtually any concern or complaint raised by employees. And so flippant remarks can be deemed racist or sexist, and larger more structured environments need to be rather more careful than smaller informal ones.

Moore Blatch Solicitors’ Maxwell explains that a boss should never assume an issue isn’t so serious it might constitute a grievance. She says: "The common pitfall is not recognising that it is a grievance when someone grumbles a complaint about something. An email doesn’t have to be labelled ‘grievance’ to constitute one, and if someone grumpily raises a complaint at a meeting it is good practice for the manager to ask whether they are raising it as a grievance. The next step is to ask them to set out the grounds of the grievance, have a meeting and then investigate it."

Of course, while a formal approach should always be an option, managers will need to exercise judgement to implement a sensible, proportionate response. Some minor issues, such as the kettle being broken, can be sorted out with an email and others with a quiet word.

The bottom line has to be, though, that to rely on an informal approach in all disciplinary and grievance scenarios, is not a wise move. A company needs to be able to demonstrate in the case of a disagreement that it followed carefully well thought-out procedures to ensure all problems were taken seriously, all parties were given a fair hearing and all employees were treated the same. This should hopefully minimise the scale of issues arising in the first place. And it should ensure the term ‘disciplinary and grievance’ doesn’t become synonymous with costly legal disputes.


 

PUTTING PROPER PROCEDURES IN PLACE

Written procedures
Employers should always seek to resolve disciplinary and grievance issues in-house, where possible, and, although a quiet word is often enough, there should be a formal written procedure that can be followed if the matter needs to be pursued further.

 

Such disciplinary and grievance procedures should provide clear and transparent structures that can be followed by both employer and employees. These procedures can ensure that everyone is dealt with fairly and reasonably and can try to resolve anything ranging from serious misconduct to personal differences between staff or inadvertent or indirect discrimination.

A written procedure should ensure that employers are compliant with employment legislation and will, hopefully, sort out issues without the need for recourse to an employment tribunal. At the very minimum it should comply with the Acas statutory Code of Practice on Discipline and Grievance, which can be downloaded from bit.ly/pw-28hr.

The law essentially requires employers to treat employees in a fair, reasonable and consistent manner and, although failure to follow the Acas code does not in itself make an employer liable to legal proceedings, employment tribunals will take the code into account in relevant cases. Tribunals can also adjust awards made by up to 25% for unreasonable failure to comply with any provision of the code.
Putting proper procedures in place

Legal advice
Kristine Gallagher, group HR manager at Hobs Reprographics, which has more than 300 employees, redrafted her company’s disciplinary and grievance procedure in-house in 2009 to bring it up to date. She then had it checked over by an external solicitor, who charged less than £1,000 for four or five hours’ work. Gallagher says: "It’s well within the abilities of a print business with only a handful of employees to draft a suitable document at no cost, but it has to be tailored to be appropriate to the organisation involved, and I would always recommend having it checked out by a solicitor. Having such a policy promotes fairness throughout the organisation, which is good for morale and gives continuity and consistency to both employer and employee."    

Disciplinary
The written procedure should let employees know what is expected of them in terms of performance and conduct and the consequences of failure to meet the standards. It should:

  • Identify obstacles to employees’ ability to achieve the standards required of them
  • Enable employers and employees to agree suitable goals and timescales within which the employee can demonstrate an improvement
  • Act as a point of reference to an employment tribunal in the event that an employee makes a complaint about the manner of their dismissal

Grievances
The written procedure should let employees know the process for raising concerns, problems or complaints within the workplace. It should:

  • Provide individuals with a course of action if they have a complaint that they are unable to resolve through regular communication with their line manager
  • Provide points of contact and timescales to resolve issues of concern

Fairness
The key consideration is to ensure that the procedure is fair to both employer and employee, so it should embody the following principles:

  • Promptness Issues should be dealt with promptly, with no unreasonable delays for meetings or decisions. "Otherwise it looks as though the employer isn’t taking the situation seriously," says Dani Novick, director at Mercury Search and Selection. "They could be considered to be either condoning the behaviour or lacking duty of care. If initial instances of misconduct are not addressed immediately the employee may argue that the employer didn’t object the first time so they can’t the second or subsequent time. "Worse, they may argue that the eventual disciplinary action is not actually related to the offence but has been prompted by something else, which could be anything from discrimination to a personal difference."
  • Consistency if an employer fails to act consistently both in their treatment of the individual or of all staff they could face claims for discrimination, victimisation or unfairness
  • Investigations Employers should carry out any necessary investigations to establish the facts of the case and record their findings in writing
  • Inform Employers should inform employees of the basis of the problem and give them the opportunity to put their case in response. Geoffrey Mead, employment partner at law firm Eversheds, says: "The key principles are that the employee should be invited to attend a meeting and should be listened to, and the outcome should be communicated. So don’t take short cuts or make any decisions before the meeting happens. When writing and asking them to attend you must make it clear you that haven’t already made a decision and will give a fair hearing."
  • Accompanied Employees should be permitted to be accompanied at the meeting, and this will often in fact be covered by union agreement. It is also advisable for the relevant manager to have someone not directly involved in the investigation, for example a PA, to attend and minute the meeting. For both parties this provides protection from a ‘he said, she said’ scenario
  • Appeal Employers should permit employees to appeal against any formal decision made. The primary purpose of the appeal should be to establish whether the initial issue was dealt with properly. The appeal should be consistent and carried out by someone not involved in the original case

Insurance
One way for employers to safeguard against the possibility of ending up at employment tribunals is to take out insurance against the potential costs involved. A commercial legal expenses policy can potentially cover the cost of representation and compensation for unfair dismissal, discrimination and contractual claims, subject to a maximum limit per claim – typically of £50,000 or £100,000. Insurance for up to £100,000 per claim for a printing firm with half a dozen employees can cost £350 to £450 per year with legal expenses insurer DAS.

If a dismissal ends up at an employment tribunal and is found to be unfair, the compensatory award could be as much as £74,200, so it’s well worth considering insurance.


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