Answers and actions for your organization
Model answer for Speedwell
Action you will take
Are job vacancies advertised openly and are they open to people of either sex and any racial background to apply for?
Many organizations have an equal opportunities policy. What is essential is that they put it into practice.
Does your organization deal with a recognized trade union that negotiates on behalf of its members with you?
If so, you will almost certainly have agreed Terms and Conditions of Employment for members with the union. Usually this will provide a sound framework for handling grievance and disciplinary issues.
Does your organization provide formal induction training for new employees?
This is a good opportunity to get new employees off ‘on the right foot’, knowing exactly what you offer to them as an employer and what you expect of them as employees.
The Speedwell management had introduced induction training for new employees.
You should also think about ‘retrospective’ induction for existing employees missed for any reason, or who may have been inducted some time ago (the law and your requirements may both have moved on since).
Speedwell had not carried out retrospective induction, though they had introduced regular briefing sessions for all staff.
Do you have an appraisal system or an equivalent system for agreeing objectives with employees and giving them objective feedback on their performance?
Fairly used, an appraisal system is an excellent way of managing employees, whatever their status. Records of appraisal interviews and achievements against agreed objectives should provide good evidence of fair, consistent management approaches.
Have all employees been issued with a Contract of Employment and Written Terms and Conditions of Employment?
A legal requirement to be issued within two months of an employee’s date of starting work.
Smaller organizations employing less than twenty people are exempt from this requirement. However, it is good practice to do so anyway – fairer to employees and evidence of your own good faith and desire to be a reasonable employer.
You need to look at the situation if you take over an existing organization, in case the previous owners had not complied with the law.
Has the Contract been based on, or cross-referenced to, a model provided by, for example, your Trade Association, DTI leaflet PL 700 or the Chartered Institute of Personnel and Development?
Using a model document can save you time and ensure that you have access to the expertise and experience of organizations who work principally in the field of employment law.
Yes – in Speedwell’s case, the Trade Association for their organization.
Do the Terms and Conditions include a formal Grievance Procedure?
To be seen as fair, the Procedure should state clearly:
with whom an employee should raise a grievance in the first instance
the appeal procedure that the employee should follow if not satisfied with the initial response.
Do the Terms and Conditions include a formal Disciplinary Procedure?
A normal, fair Procedure will include a number of stages:
Informal Warning or admonishment (not recorded)
First Written Warning
Second (and/or Final Warning)
Dismissal.It is prudent to keep a record in an employee’s personal file of all warnings issued, with dates, and to require the employee to sign a copy to prove that (s)he is aware of the action taken. This includes ‘Verbal Warnings’ – if no written record is kept, how can you prove that it was issued?
66Do the Terms and Conditions state that an employee has the right to be accompanied by a colleague (or trade union representative if appropriate) in any disciplinary proceedings?
It is important, to be fair and seen to be fair, that the procedure is ‘open’ and that an employee cannot be pressured unduly by his or her boss ‘behind closed doors’.
Yes – a colleague or appropriate member of staff according to the circumstances.
Do the Disciplinary Procedures include provision for an ‘improvement period’?
This relates to formal warnings. A reasonable period for a serious matter might be six months, after which the employee’s performance will be re-assessed. ‘Open-ended’ warning periods will almost certainly be seen as unfair – you can’t reasonably expect someone to work out a ‘life sentence’ for one offence.
Do the Terms and Conditions spell out what will be seen as ‘Gross (Industrial) Misconduct’?
You do not have to predict every possible situation. Gross (Industrial) Misconduct offences specified will often include:
fighting, ‘horseplay’ and unruly behaviour – including verbal abuse of work colleagues
major breaches of Health, Safety and Hygiene (legal or organizational requirements)
67refusal to obey any reasonable instruction – for example, refusing to work with another employee because of their colour or gender
theft of, or malicious damage to the organization’s property
illegal trading/disclosing trade secrets to a competitor.This is not a comprehensive list – it is impossible to envisage every situation which might arise in every organization. Common sense still has a part to play in deciding what constitutes Gross Misconduct.
It is clear that Gross (Industrial) Misconduct will lead to ‘Summary Dismissal’?
Summary Dismissal is a severe sanction, taking away benefits that may have accrued to an employee over a long period. It should only be used where the offence is so grave that he or she must be removed from the organization instantly.
Is it made clear that Summary Dismissal is Dismissal without Notice or any payment in lieu of notice?
It is fair and proper to ensure that employees know just what the penalty means – and what it will be imposed for – at the start of their employment with your organization.
Do the Terms and Conditions specify what sanctions other than dismissal may be imposed for breaches of discipline short of ‘Gross Industrial Misconduct’?
These might include:
suspension (with or without pay) for specified periods
specified ‘fines’ from wages (subject to any maximum legal limits in force)
Dismissal with Notice as set out in the Contract and subject to employment law.
In the Speedwell case, Kempton’s offence did constitute Gross Industrial Misconduct. Their Terms and Conditions did not envisage suspension (with or without pay) as a possible sanction.
68Have you talked through these provisions with each employee individually, to ensure that they understand the rules by which they must abide?
It is good practice, and demonstrably fair, to take a little time to go through the rules, bearing in mind that some employees will have little experience of legally binding contracts.
Has every employee signed a copy of their Contract which you have retained on their personal file?
This will be good evidence that you have issued the documents. The signature shows that the employee has had the chance to read them and query anything that they do not understand, or which they believe is unfair.
Have any changes been made to the Terms and Conditions since the Contract was issued initially?
Changes should not be imposed without the consent of all employees affected.
Have these been discussed with, and accepted by, the employee(s) affected?
If changes are imposed unilaterally, employees may claim Constructive Dismissal before an employment tribunal.
Changes in working arrangements following redundancy of the Production Manager’s post were discussed and agreed with all staff affected.
69Do you use standard documents for issuing written warnings?
These can be very helpful, saving time and ensuring that you deal consistently with all employees across every department.
Model documents are available from Trade Associations and organizations like ACAS.
Do you always provide a ‘written statement of reasons for dismissal’?
This is a legal obligation for employees dismissed after 26 weeks’ employment. However, it is good practice to do so for any employee. Failure to do so may strengthen an employee’s case if a claim is made to an employment tribunal.