The disciplinary framework can be divided into two elements:
- The rules imposed within the workplace, and,
- The procedures which need to be followed to ensure legal compliance and best practice. The ERA requires that in claims of unfair dismissal not only must the employer prove that the dismissal was for a potentially fair reason, but that also the employment tribunal can satisfy itself that the employer acted reasonably in treating as sufficient, the reason which was the basis for the dismissal. The Tribunal will focus on the employer’s behaviour, which should be judged by reference to the standards of a ‘reasonable employer’.
The employment Act 2002 introduces statutory disciplinary and grievance procedures which will be incorporated into all contracts of employment and which should be followed if the employer is to avoid liability for unfair dismissal or breach of contract.
The workplace disciplinary rules
The rules are necessary to advise employees of the kinds of behaviour that constitute a breach of discipline. They ‘set the standards of conduct at work and make clear to employees what is expected of them’ (ACAS advisory handbook). The rules governing conduct of employees must be set in the context of an overall disciplinary policy. The policy should contain the general aims, values and principles in relation to disciplinary issues. In drawing up the disciplinary rules and procedures, the employer should have regard to both the statutory procedures contained in the employment Act 2002 and the ACAS Codes of Practice and the ACAS advisory handbook. The code acknowledges that the rules are likely to differ according to the size, type of business, skills of workers etc. The rules should be formulated so that they provide specific information, rather than general guidance, as to standards of behaviour and should include matters such as:
- What behaviour will constitute gross misconduct (e.g. fighting, theft assault)
- How misconduct is to be handled (e.g. suspension on full pay during an investigation period and summary dismissal if gross misconduct is proved)
- How minor misconduct will be dealt with.(e.g. fines)
- The rights which an individual has when being taken through the disciplinary procedure (e.g. to representation)
The purpose of disciplinary procedures is to provide a means of encouraging improvement in the employees conduct and performance. Where the employee has failed to respond to the support and encouragement provided by the employer (or in rare circumstances where this is not appropriate), the procedure provides guidelines as to how the employer can reasonably dismiss an employee. The ACAS Code of Practice suggests principle criteria for disciplinary procedures which embody the requirement of procedural fairness. In addition, a number of relevant principles have been developed by the courts and employment tribunals.
The aim of a warning in capability cases is to achieve an improvement in the employee’s performance. Although disciplinary procedures should normally be followed closely, where, in an incapability case, there is no prospect of improvement – a warning would serve little purpose and consequently need not be given.
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