Disciplinary Action - Employment Matters

[markjay]

It is very rare that we are involved in Disciplinary Action against an employee, and the current matter is only the second time I have ever had to be involved in such case in several decades....

This relates to a company of which I am a Director, however I have no role in the day-to-day running of this company hence not working directly with said employee.

Like all cases involving employment disputes, this one has a history, but to cut a long story short, the employee was called to a formal Hearing where disciplinary action would have been considered, including possible dismissal.

He did not show up to the hearing. He acknowledged receipt of the email, but ask for postponement saying he needed 'more time' to study the documents. We said he had to attend at the time and date as notified in the email we sent him, that that any concerns he may have will be addressed in the Hearing, with a second Hearing arranged if need be. We also told him that not attending a scheduled Hearing of which he had sufficient notice is a very serious matter.

He then offered to attend at a different time, which we declined (it was not possible due to Directors being unavailable at the time of his choosing - 17:30 pm). So the time for the Hearing came and went.

Today he sent an email listing what he considers to be mistakes and errors the management had done in dealing with his disciplinary issue so far (certain meetings were not minuted, etc), and saying that the reason he did not attend the Hearing was that the proper procedure leading to the Hearing was not followed.

Now I am not sure what to do next... from his email today it does seem that he is talking advice from a professional, which is his prerogative, and that we will need to do the same.

So I am not really asking for free professional advice here - just for your views...

If we let him go based on him not attending a scheduled Hearing - we would seem petty. If we call him for another Hearing to discus the issue of him not attending the Hearing... well this is just going in circles, and there is no guarantee he wont come up with a reason for not attending that Hearing either. If we ignore the fact that he did not attend the first Hearing, and invite him for a postponed Hearing as he originally requested, firstly he may just not show up again, but also this does not make us look good with the rest of the staff (who are unfortunately aware of the current dispute, in spite of us making an effort to keep it as confidential as possible in a small company), showing them that we can be treated in this way and do not respond. Also there is a risk of claims of discrimination if in future a member of staff decides to not show up to a Hearing and we take action against him/her.

What are your thoughts... ?

 

[James Copeland]

Hi
If you suspended him and then invited him to a disciplinary during his normal working hours and you gave him 24 hours written notice then he is at fault for not attending.
Unfortunately I have been retired for 3 years and my knowledge maybe out of date.
You must seek legal help as your employee with his 'help' could then claim construvtive dismissal.
You must also document all contact with this employee as tribunals seem to belive that employers know the law better than employees
Good luck
jim

 

[E55BOF]

I am no expert in employment law, but it sounds as though he anticipates dismissal and will not go quietly. You could now put the ball in his court, and ask him to nominate a range of dates and times in the next couple of weeks when he would be willing to attend a hearing. If he either then fails or refuses to do so, or fails to turn up on a date he has nominated, it would put him in the position of refusing a reasonable management request and give you more ammunition.

 

[John]

From Mrs JB:

You have to be reasonable about this or at least show you are being reasonable about this.

It matters not if the whole company knows about it. If anything, the fact they do and you are shown to be reasonable will shine you in a better light.

Invite him in for a second meeting.

Tell him in the letter you send inviting him that the hearing will happen on this date and time and in his absence if he is unable to attend.

If he is unable to attend, can he be contactable by telephone if there are questions for him? Can he send in any written statements he would want to be considered?

If he doesn't attend, you must still carry out the meeting as if he is still there. You cannot make a decision by default.

He still has a right of appeal after this.

However, if he is less than two years employed, the risk of employment tribunal is less unless he has a health problem, disability or discrimination claim - which then of course increases the risk of him taking you to a tribunal.

 

[Deleted member 37751]

Sack him and kick him down the stairs.

 

[davidjpowell]

Getting it wrong could be very expensive. Worth taking professional advice...

 

[Tim203]

Sack the belligerent t***er.
No seriously MJ, we had a similar sounding type of person working with us some years ago. Smart enough to play the game of making life as uncomfortable as possible for all involved and never doing any more than absolutely nescessary work wise. This isn't always the case I know but we took advice from a professional employment lawyer to dismiss our employee and it was money well spent. If you wish I will PM you his details tomorrow when I am back in the office.

 

[brucemillar]

JohnEboy is correct. Never assume that you are being reasonable. There is a law here and you need to follow it to the letter. I would suggest that you engage the services of an employment lawyer. I would suspect that your employee has already done so (going by his reaction).

Did you advise your employee that this was a disciplinary meeting that he was being asked to attend? That is important as he has rights here and they must be properly adhered to. Get it wrong now and any future legal action is likely to be viewed in light of your "mistakes"at this time. Your employee simply states. Look how can you trust these people they couldn't even get this correct. Or suggesting that you may deliberately have got it wrong (even worse).

If he is a smart ****. Consider paying him off. It may be cheaper in the long run. You mention history? That is also a concern. If there is history it may show that there are more failings on your side.

 

[moonloops]

Sack him and kick him down the stairs.

....backwards

 

[HughJarse]

Take advice as what is the correct route.
What you then do is follow correct procedure whether he turns up or not does not matter as long as your behaviour is fair and reasonable. You must keep him informed and give him every opportunity to contest. You must be reasonable as thats what he'll ultimately get you on.

As I say if he turns up or not follow procedure and ultimately sack him.

 

[Flyinspanner]

Wow, don't know how he can be branded a belligerent t****r by someone who isn't in full receipt of all the details.

I would think JohnEBoy has a more measured approach.

Lots may depend on how much notice the person was given for the first hearing and wether they could arrange for a representative to accompany them.

If procedural mistakes have been made, they may well not work in the companies favour if it goes to a tribunal, and could cost you dearly later.

 

[Tim203]

Mods; Please cancel my previous post as Flyinspanner is right as I am not in full receipt of the facts although my initial comment was not intended to be taken seriously.

 

[Deleted member 113659]

Mods; Please cancel my previous post as Flyinspanner is right as I am not in full receipt of the facts although my initial comment was not intended to be taken seriously.

No need to remove your post Tim. You offered good advice. Your initial comment was not taken seriously. (Neither were comments by a few others.)

 

[Druk]

You got to that edit 5seconds before me Ant.

 

[ChrisEdu]

Do you not have a Disciplinary Policy? ACAS are very good for advice.

 

[StuartK]

Speak to peninsula group. They will supply you with all you need as a small business.

 

[markjay]

Hi
If you suspended him and then invited him to a disciplinary during his normal working hours and you gave him 24 hours written notice then he is at fault for not attending…

This is exactly what happened.

I am no expert in employment law, but it sounds as though he anticipates dismissal and will not go quietly….

I suspect that you are probably right.

From Mrs JB:

You have to be reasonable about this or at least show you are being reasonable about this.

It matters not if the whole company knows about it. If anything, the fact they do and you are shown to be reasonable will shine you in a better light.

Invite him in for a second meeting.

Tell him in the letter you send inviting him that the hearing will happen on this date and time and in his absence if he is unable to attend.

If he is unable to attend, can he be contactable by telephone if there are questions for him? Can he send in any written statements he would want to be considered?

If he doesn't attend, you must still carry out the meeting as if he is still there. You cannot make a decision by default.

He still has a right of appeal after this.

However, if he is less than two years employed, the risk of employment tribunal is less unless he has a health problem, disability or discrimination claim - which then of course increases the risk of him taking you to a tribunal.

He has been employed by the company for around 5 years.
And please thank Mrs. JB for me for her time and excellent advice.

Sack him and kick him down the stairs.

“You might very well think that; I couldn't possibly comment” - Francis Urquhart

Getting it wrong could be very expensive. Worth taking professional advice...

You are correct, and this is what we intend to do.

…No seriously MJ, we had a similar sounding type of person working with us some years ago. Smart enough to play the game of making life as uncomfortable as possible for all involved and never doing any more than absolutely nescessary work wise. This isn't always the case I know but we took advice from a professional employment lawyer to dismiss our employee and it was money well spent. If you wish I will PM you his details tomorrow when I am back in the office.

Much appreciated – looking forward to your PM

…Did you advise your employee that this was a disciplinary meeting that he was being asked to attend? That is important as he has rights here and they must be properly adhered to. Get it wrong now and any future legal action is likely to be viewed in light of your "mistakes"at this time. Your employee simply states. Look how can you trust these people they couldn't even get this correct. Or suggesting that you may deliberately have got it wrong (even worse).

As far as we can tell we followed disciplinary procedures to the letter. The point is that he is now saying that the correct process has not been adhered to. For example, he claims that when he was given the verbal warning (a few months ago – the first is a series of warnings) ‘there was no discussion’ – which he claims we should have had – and ‘no minutes were taken’. The way it happened is that he was called into the office by his manager, who explained to him that what he did was wrong, and told him he was being issues a verbal warning. This was backup up by email that he acknowledged. Now I don’t know where he is getting this ‘process’ from – I am not aware of any guidelines that say that minutes must be taken when an employee is issued with a verbal warming. It is definitely not in our own company’s Disciplinary policy. So I don’t actually know if he is making it up in order to be obstructive, or did we really get something wrong? The point is that he raises several issues of this nature and says that this is why he did not attend the meeting – because in his opinion correct disciplinary procedures were not followed up to that point.

…Consider paying him off. It may be cheaper in the long run. You mention history? That is also a concern. If there is history it may show that there are more failings on your side.

Funny you should say that… as I said, there is a history to this. When he was suspended on full pay, he handed in his resignation with a final date several months ahead. So what he expects us to do is accept his resignation, not proceed with the Hearing, and simply pay his salary for the next few months while he is sitting at home (or gets another job). Apart from the financial side, there is a bigger issue here. His manager started a drive to improve discipline last year, and this employee was simply not able to fall in line. Now if we agree to him doing what he suggested, apart from it being grossly unfair to us, we risk demoralising the staff and undermining the discipline drive which is currently under-way. Also I feel that we will not be backing the manager by allowing the employee to get away with something which is grossly unfair. As said, unfortunately we are a small company and work in open space… but you may be right that is actually the cheaper option.

....backwards

See my response to SPX. Ahmmm.

Take advice as what is the correct route.
What you then do is follow correct procedure whether he turns up or not does not matter as long as your behaviour is fair and reasonable. You must keep him informed and give him every opportunity to contest. You must be reasonable as thats what he'll ultimately get you on.

As I say if he turns up or not follow procedure and ultimately sack him.

Thanks, yes this looks like what we will do. I am not at all certain that the outcome of the original Hearing would have been dismissal, but he does seem to be burning a lot of bridges on purpose so possibly he does not actually want to get back to work at this stage. What baffles me is why he seems to prefer risking having to leave without references to reaching an amicable solution to the issue.

….Lots may depend on how much notice the person was given for the first hearing and wether they could arrange for a representative to accompany them.

If procedural mistakes have been made, they may well not work in the companies favour if it goes to a tribunal, and could cost you dearly later.

As previously said, I am not aware that procedural mistakes actually occurred, he claims so, but again it is not clear to me if he received valid advice or just having it on?

Do you not have a Disciplinary Policy? ACAS are very good for advice.

Yes we do have one. And we also had one of the managers check ACAS recommendations online and he didn’t think we got anything wrong. But clearly this is time for a professional to look at this.

 

[markjay]

With regards the actual issue.... without being specific, that particular event that is the cause of the disciplinary action has occurred for dozens(!) of times in the past year. My own impression is that the employee is simply unable to abide by a very simple and basic request. Possibly this is why he is not making an effort to keep his job - he probably knows that he can't cope with the requirements.

 

[markjay]

And thank you to all those who replied

 

[markjay]

As far as we can tell we followed disciplinary procedures to the letter. The point is that he is now saying that the correct process has not been adhered to. For example, he claims that when he was given the verbal warning (a few months ago – the first is a series of warnings) ‘there was no discussion’ – which he claims we should have had – and ‘no minutes were taken’. The way it happened is that he was called into the office by his manager, who explained to him that what he did was wrong, and told him he was being issues a verbal warning. This was backup up by email that he acknowledged. Now I don’t know where he is getting this ‘process’ from – I am not aware of any guidelines that say that minutes must be taken when an employee is issued with a verbal warming. It is definitely not in our own company’s Disciplinary policy. So I don’t actually know if he is making it up in order to be obstructive, or did we really get something wrong? The point is that he raises several issues of this nature and says that this is why he did not attend the meeting – because in his opinion correct disciplinary procedures were not followed up to that point.

Another example - he is saying that when had his written warning, we should have held a 'discussion with witnesses present', which we failed to do. Again he was called to his manager's office and the warning was given in person, followed by a written letter. I am not sure where he is taking it from that disciplinary action e.g. warnings should be issues in front of witnesses - and who would these witnesses be anyway? Fellow members of staff - i.e. he is to be disciplined in front of his peers?