Employment Law and Employee Relations

Question: Discuss about the Essay for Employment Law and Employee Relations? Answer: Introduction Employee performance and conduct are two very important factors that help in achieving organizational objectives. Employee performance is directly related to the overall productivity of an organization. On the other hand, the manner in which an employee is required to act determines the environment and work culture of an organization (Xperthr.co.uk 2011). There is a close nexus between the two as employee conduct relates to effectiveness and efficiency of an employee. Therefore, it becomes necessary for an organisation to devise and implement standards for performance and conduct of an employee and enforce them as company rules and policies. Discipline can be said to be an emotive word in relation to employment (Acas.org.uk 2016). Employees are required to be disciplined in order for the organization to work properly. Practically, discipline at work is one of the most crucial issues that a manager has to face. When employees are in breach of existing codes of conducts applicable with in the organization, the company is required to take disciplinary actions by following a proper procedure (Xperthr.co.uk 2011). This report is focussed in bringing out and analyse what can be considered to be a good practice while handling such disciplinary matters in the light of the applicable employment laws of the country. For the purpose of task 2 of this report, Tesco PLC has been chosen as a case study. Good Practice The UK has a complete employment legislation structure with several acts ensuring that the rights of the employees and the employer are protected. In the present context, it cannot be denied that if there are issues relating to an employees conduct, capability and performance are not handled in a professional manner the organisation will not be able to focus on its goals (Acas.org.uk 2016). Therefore, it is necessary for the management to follow some good practices while handling the above matters so that they do not escalate to an unmanageable state. It is the duty of the management to ensure that all employees are treated fairly and in a just manner in cases where disciplinary actions are being taken against such employee (Xperthr.co.uk 2011). There is no fixed definition of good practice. However, it involves the following: Acting with a just cause Using the existing procedures in a proper manner Acting consistently Following the rules of natural justice Any other measure that can be included within a good practice code Following the above principles, not only ensure fairness and consistency within the organisation but also develops a good business sense within the organisation. Therefore, while handling disciplinary matters, the management is required to follow these principles in order to arrive to a proper solution and harmonize the interests of the employer and the employee. The ACAS Code for Disciplinary Procedures While dealing with management and resolution of disciplinary issues within an organisation, the ACAS Code on Disciplinary and Grievance Procedures in Employment forms an important source of good practice that is required to be followed. The code takes into consideration the existing provision of the legislative structure applicable in relation to employment laws (Acas.org.uk 2016). Following are the legislations, the provisions of which are incorporated within the code: Trade Union and Labour Relations (Consolidation) Act 1992 Employment Act 2002 Employment Rights Act 1996 Though violating the provisions of the code is, in itself, not unlawful, its provisions play an important role in understanding the disciplinary process. Such breaches of its provisions will not attract legal proceeding. However, employment tribunals consider the code while hearing relevant cases. Arbitrators appointed by the ACAS follow the code to dispose off cases brought under the ACAS Arbitration Scheme (Acas.org.uk 2016). A handbook developed by the ACAS known as the Discipline and Grievance at Work, stipulates the following Code of Practice: The need for disciplinary procedure and rules Proper handling of a disciplinary matter Holding of a disciplinary hearing Deciding and implementing disciplinary actions, and An appeals process Fair Disciplinary Procedure Section 1 of the Employment Rights Act 1996 states deals with an employees right to a statement of employment particulars. This is considered to be the starting point of a disciplinary process (Legislation.gov.uk 2016). Section 3 further stipulates that the statement of particulars be required to include disciplinary rules applicable to an employee. The Employment Act 2002 states that the statement shall also contain the procedures applicable while taking disciplinary actions. Section 98A of the Employment Rights Act 1996 stipulates a three-step dismissal and disciplinary procedure as follows (Legislation.gov.uk 2016): Step 1: The employer must communicate to the employee about the employees conduct, capability or other circumstances that may result in a disciplinary or dismissal action. Step 2: A meeting should be convened at a reasonable time and place where the matter can be discussed with the employee. Step 3: If the employee wants to appeal, he/she should communicate it to the employer. The employer may hold further hearings to resolve the matter. Key Components of Disciplinary Process According to the ACAS code, following are the key components of a disciplinary process (Acas.org.uk 2016): An oral warning Followed by a written warning if there are no improvements A final written warning if the conduct or capability of the employee is still not satisfactory Convening of a hearing Ultimately dismissal if the matter is not resolved or if improvements are not noticed As it has been explained earlier, that the employee is required to be given a fair opportunity of being heard. The primary objective of the meeting is to hear what the employee has to say (Cipd.co.uk 2016). Final dismissal comes after the hearing is conducted and if the conduct of the employee is still found to be unsatisfactory. Challenges Faced while Implementing a Disciplinary Procedure In light of the present business environment, it is somewhat difficult to implement a stringent disciplinary procedure within an organization (Acas.org.uk 2016). The management faces a number of challenges as stipulated below: Regulatory provisions being stringent, an organization has to follows procedural steps even if the employee is found to be in cross misconduct and of unsatisfactory performance. Often the employees do not attend the meetings and hearings. This extends the whole procedure and the organisation has to incur losses. The employees against whom the company has initiated a proceeding often ignore the arbitration process (Code of professional conduct and disciplinary procedures 2016). In case, where the employee is required to get a statement of particulars and other essential documents, the witnessing process is hampered as witnesses often refuse to be identified. The organisation is legally and ethically bound by the code and legislative provisions to conduct a fair disciplinary procedure. This intent of the organisation often is misjudged by the employees and as a result, the entire process turns out be chaotic. While implementing a disciplinary procedure, an organization faces much resistance from the trade unions (Xperthr.co.uk 2011). Case Laws The legislative structure intends to prevent unfair dismissals by employers. The legislation requires the organisations to act reasonable and this element has been the core of the entire structure. Some of the important case studies related to capabilities and conduct are as follows: Dundee City Council v Sharp EATS [2011] In the above case, an employee was dismissed due to long-term sickness absence. A long term sickness caused the employee to remain absent and this affected his capability to perform his assigned tasks. As a result, the employee was let go and the EAT held such dismissal to be fair and just. Adeshina v St Georges University Hospitals NHS Foundation Trust [2015] In this case, the EAT held that the dismissal of the employee was fair even if there was a flaw in the first stage of the disciplinary process and in the composition of an appeal panel. Ahmed v Premier Foods Group Ltd ET [2011] In this case, the employee was dismissed for gross misconduct and his union representative betrayed him at the appeal stage. This changed the manner in which witnessing is done in employment trials. The company selected for this part of the report is Tesco PLC. Tesco has profound disciplinary procedure that it follows which is in parity with the ACAS code and the applicable legislative framework (Acas.org.uk 2016). The company encourages its employees to maintain its standards of conduct and capability so that the overall goals of the organisation are achieved. In case the performance or behaviour of an employee is in question, the line managers take up the responsibility and work closely with the employee to improve his/her condition (Our Code of Business Conduct - Tesco 2016). The company has in place two disciplinary procedures: Informal Procedure, and Formal Procedure Formal procedure is only availed when all efforts of the company through the informal procedure has been exhausted (Solving Problems at Work Staff Guide - Tesco 2016). The company is committed to conduct a thorough and fair investigation in order to address the issues identified. This investigation is generally concluded within a reasonable timeframe of 14 days unless both the parties agree for an extension. Informal Procedure The line manager deals with the employee first hand whose conduct and capability is in question and will try to resolve the matter. This working together attempts to solve all the issues identified informally and bring back the conduct and capability of the employee to the required level (Solving Problems at Work Staff Guide - Tesco 2016). Effective coaching and support is given to the employee to resolve the issues. At this stage, all the required information is communicated to the employee and every step is taken with the approval of the employee. Formal Procedure If issues are not resolved informally and the situation becomes serious, the manager takes the formal disciplinary procedure. The formal procedure of Tesco consists of the following stages (Solving Problems at Work Staff Guide - Tesco 2016): Verbal Warning First Written Warning Final Written Warning Suspension/Demotion/Dismissal If all attempts to solve the issues fail and the performance of the employee is still unsatisfactory, Tesco takes either of the following actions (Solving Problems at Work Staff Guide - Tesco 2016): Suspends the employee or Demotes him/her or Ultimately dismisses the employee. It can be seen that Tesco follows a well organized disciplinary procedure to resolve employee issues. In the given case law, the employee was not communicated all the material facts of his case, which ultimately lead the EAT to decide that the dismissal was unfair. However, the procedure of Tesco allows all representations of the employee and provides an explicit right to appeal against the disciplinary actions taken against the employee (Tesco direct 2016). Relation with other Company HR Policies As explained above, Tesco has a well written and structure disciplinary procedure and the company takes serious note of each and every employee issue. It is a multinational company and consists of employees who come from different ethnic backgrounds. There are several policies and procedures that have been implemented within the company (Solving Problems at Work Staff Guide - Tesco 2016). However, as the company has a strong disciplinary procedure, its contravention with other HR policies is less likely to happen. The informal procedure tends to solve most of the problems arising out of employee conduct and capabilities. Every employee is treated equally even if their workforce is a diversified one (Tesco direct 2016). Conclusion It can be inferred from the above discussions that resolving employee issues has become indispensable in the light of the present legislative framework of the UK. Companies are actively adhering to employment laws in order to resolve issues related to conduct and capabilities of their employees. In essence, the importance of a proper disciplinary procedure cannot be overemphasized (Employee performance and behaviour 2016). A proper mechanism to resolve these issues ultimately saves valuable resources of the company. To achieve this, every company is required to handle sensitive employment matters fairly and with justice by providing all the required information to the employee in question. Failing to do this attracts unnecessary legal proceedings that draws back the company and prohibits it from achieving its objectives. Thus, a proper code and disciplinary procedure will tend to increase the effectiveness and efficiency of the organization and its employees. Recommendations Following are the recommendations in light of the present topic of disciplinary procedures: A company should implement a just disciplinary procedure Set standards for conduct and capability Careful consideration of the issues identified Proper communication with all the parties involved Implement a mechanism for arbitration Convene hearings Provide equal and just opportunities to the employees for being heard Allow proper representation for the employees A structured and fair dismissal process An appeal process References Acas.org.uk. (2016).About Acas: research | Acas. [online] Available at: https://www.acas.org.uk/index.aspx?articleid=1579 [Accessed 21 Mar. 2016]. Acas.org.uk. (2016).Acas Case Studies | Acas. [online] Available at: https://www.acas.org.uk/index.aspx?articleid=1580 [Accessed 21 Mar. 2016]. Acas.org.uk. (2016).Challenging conversations and how to manage them | Acas | Acas. 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