LEGALLY PARKED DISCIPLINARY ACTION
disciplinary A
TAKING ACTION
There are specifi c rules on disciplinaries, set down by the Advisory, Conciliation and Arbitration Service (ACAS). Claudia Gerrard explains how companies can get this very wrong
manager believes an employee is not performing. He invites the employee to attend an annual
ABOUT the AUTHOR:
Claudia Gerrard is
legal director at Ortolan Legal. Contact
details: cgerrard@
ortolangroup.com or 0844 561 1638
review and includes the alleged wrongdoing on the agenda, inferring this was just a point for discussion. At the meeting the manager issues a formal warning. So what’s wrong? Companies should have written procedures for dealing with disciplinary action, and managers should always comply with those procedures. ACAS recommends that informal action should be taken where possible, and the aim should be to encourage improvement, not to punish. The fi rst mistake the manager made was how he set up the meeting. A disciplinary meeting has to be notifi ed to the employee in writing. Secondly, the manager did not specify the nature of the complaint – the employee must be allowed to prepare a defence and not be ‘caught on the hop’.
The manager also ignored the employee’s right to be accompanied and the employee’s right to appeal. These were all breaches of the ACAS code on disciplinaries.
In our scenario, the manager failed to reach his decision fairly and impartially. It is important not to have a pre-conceived idea of the employee’s guilt (judging before you have heard the evidence). Here, the manager failed to listen to the employee’s explanation, as his mind was made up.
The manager did not specify the nature of
the complaint – the employee must be allowed to prepare a defence
Another consideration is whether the sanction – a written warning in our scenario – is reasonable in all the circumstances. Written warnings and dismissal are used in cases of misconduct, but there are other innovative options, which ACAS includes in its code. One is to issue an improvement notice. This is a useful tool, as you can specify the unacceptable behaviour, identify how the employee can improve, and impose timescales for improvement. Also, the benefi ts of counselling and training are often overlooked. Assisting an employee to do their job better is often more productive than punishing them. It is important to get it right because failure to comply with the code could make the warning unenforceable. Or it could mean a dismissal is automatically unfair, resulting in an employee complaining to an employment tribunal. And any damages could be increased by 25 per cent, just for failure to comply.
20 JULY 2012
www.britishparking.co.uk
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