A Simple World-Wide-Web Synopsis Of » Employment Law Disciplinary Act And Other Research
Employment Law – An Overview
Prior to employing personnel it is important that the basic legal requirements are understood, to avoid problems in the future. Strict adherence to employment and discrimination law is paramount, to avoid litigation, but also to be seen as a fair employer, which will ensure a content workforce and also prevent negative publicity for the company.
Common Law
This has long recognised that employer’s have implied obligations to their employees. It also gives the employer certain implied rights. Areas covered in clued:
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Pay
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Limited duty to provide work
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Expenses
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Duty of mutual trust
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Contractual Rights
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A duty to ensure safety
The major right of the employer is that the employee will act in god faith.
Employment Rights Act 1996
This has consolidated much of the previous legislation. Updated by the Employment Act 2002 with particular attention to parental leave.
Major provisions:
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Employer must provide certain written terms and conditions of employment, including:
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When employment started
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Rates of Pay
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Holiday entitlement and pay
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Sick pay
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Notice of Termination including period of notice to be given.
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Unfair Dismissal
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Contracts of Employment
A contract of employment must conform to the rules of any contract. A specific offer and an unequivocal acceptance must take place for it to be binding. It need not be written down although most are. Written particulars of their specific job must he given to employees who work in excess of 8 hours per week.
If a contract is issued, it must be done within 13 weeks of employment start date.
Particulars of the main terms must include:
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Names of employer and employee
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Job Title
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Date employment commenced (this is needed to calculate holiday pay, redundancy pay etc)
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Detail on pay.
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When salary will be paid.
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Normal working hours per week
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Terms & Conditions relating to:
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Holiday entitlement & pay
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Sick pay and sickness policy and procedure
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Pensions
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Notice period
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Disciplinary and grievance procedures
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Other statutory rights for employees include:
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Public Duties
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Acting as an employee representative
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Acting as a pension scheme trustee
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Women attending Ante-Natal Care
2002 Employment Act
A woman is entitled to full maternity leave if she has been employed continuously for over 2 years. If she has been employed for less time her entitlement is reduced. The period of entitlement has been raised to 26 weeks. Her job must also be kept open.
Maastricht Treaty – The Social Chapter
The Social Chapter guarantees some basic rights for workers:
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A minimum wage
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Maximum working week of 48 hours
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4 weeks paid holiday per year minimum
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freedom to join a Trades Union
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Access to appropriate training
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Right to be consulted about company plans
The Working Times Regulations 1998 and Young Workers Directive have added substance on how many hours of work and rest a worker should have. Rest periods and breaks are also covered. Employees can opt out of the maximum working hours by agreement, but always have the right to change their minds. Young Workers under 18 years old are entitled to longer rest periods and breaks
Health & Safety at Work Act 1974
Outlines the duties of the employer to ensure the welfare of employees, to ensure safe systems of work are in place, and to be responsible for the provision and maintenance of a safe working environment with adequate welfare facilities.
Sex Discrimination Act 1975
Discrimination to which Act applies
1.-(1) A person discriminates against a woman in any circumstances relevant for the purposes of any provision of this Act if-
(a) On the ground of her sex he treats her less favourably than he treats or would treat a man, or
(b) he applies to her a requirement or condition which he applies or would apply equally to a man but-
(i) Which is such that the proportion of women who can comply with it is considerably smaller than the proportion of men who can comply with it, and
(ii) Which he cannot show to be justifiable irrespective of the sex of the person to whom it is applied, and
(iii) Which is to her detriment because she cannot comply with it.
(2) If a person treats or would treat a man differently according to the man's marital status, his treatment of a woman is the purposes of subsection (1)(a) to be compared to his treatment of a man having the like marital status.
It is clear that Mandy Roscoe’s idea of only employing slim, attractive women under 25 years old could put the company into legal confrontation.
It is now an offence to discriminate against anyone based on their, sex, gender, sexual orientation, religion or faith, race etc. As of 2006 it will become an offence to discriminate against someone because of their age.
The company need to adopt a responsible attitude towards the staff they employ or wish to employ. As well as being morally and legally wrong to discriminate it doesn’t make business sense either, as bad press will certainly damage the company.
Conclusions
It can be seen that the wealth of protective legislation which has come onto the statute books has had a profound effect on business. It does however offer protection to those that need it and should be seen as a positive step towards a safer, fairer future, with less industrial unrest and more productivity.
Sources:
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Sex Discrimination Act 1975
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Needham D. et al 2003 Business for Higher Awards: 2nd Ed: Heinemann
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Race Relations (Amendment) Act 2000
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The Disability Discrimination Act 1995 (Amendment) Regulations 2003
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HomelandSecurity #244 Public Law 107296 107th
May 23rd, 2010 at 12:16 pm
When you say they have amassed a history of warnings do you mean you've taken them through formal disciplinary proceedings?
I'm dealing with someone very much like this at the moment – lots of little things, but nothing major so that we can dismiss them. With people like this it's very much a case of softly softly catchy monkey.
If you haven't taken them through any formal disciplinary proceedings yet, this is what I would do:
- Sit down with the individual and tell them that you need to discuss several elements of their conduct and performance that are not up to the required standard
- Take a list of examples of times you have had to speak to them about these issues before
- Ask them why they think they are not coming up to the required standard
- Say you want to help them to achieve the standard required and will support them in terms of training, etc, but that if they don't improve you may have to take further action
- say you want to put an action plan together to help them, ask them to think about what things could go into the action plan and then come back together a couple of days later to draft it together
- In the action plan list all the different areas where conduct/performance isn't up to scratch, and then for each one list ways that you can support the individual to improve and ask them for ideas of what they can do to improve
- State explicitly in the action plan what standard of behaviour and conduct you expect to see (but make sure these are fair and realistic)
- make it very clear to them that their conduct/performance will be reviewed against the action plan and set a date for when this will happen (one month is always good to start with, then take it from there)
- Make it clear to them that if satisfactory progress towards the targets in the action plan is not made within that review period then you may have to take formal disciplinary action
- Sit down with them on a weekly basis to offer ongoing support (no matter how difficult the individual is being)
If they improve then don't forget to give positive feedback and tell them you expect this improvement to be maintained going forward.
If not, and further instances still occur then invoke your formal disciplinary procedure. It may be that you concentrate on one particular incident that has occured during the review period. Something petty, if founded following disciplinary proceedings would get a verbal warning. You then look at the action plan again to provide support for them to improve, but any further breaches would result in further disciplinary proceedings, and gradually you can work through the warnings as per your disciplinary procedure. (For example, where I work a verbal warning is active on file for 6 months, if in that time a further breach occurs then this warning is taken into account when deciding on a further sanction – therefore if something petty happens again, they'll get a first written warning rather than another verbal. The first written warning stays on file for 12 months – any further petty breaches of discipline in that time would result in a final written warning. The final warning stays on file for 18 months – any further petty breaches in discipline would then result in dismissal.)
I know it's long winded, but you have to bide your time and do things properly to protect yourself from allegations of unfair dismissal. Someone dismissed through an accumulation of warnings would be entitled to pay in lieu of notice (unlike dismissal for gross misconduct where you can dismiss without notice). If there is a more serious breach of discipline when a verbal or first written warning is on file, then you could look straight to dismissal.
Hope all this helps! Good luck and stick with it.