Disciplinary Action - Employment Matters

[scumbag]

just a point to consider.

Or a few actually.

This sounds like capability issues of the individual. So you need evidence of the whole issues and what you did about it. (expert employment lawyer will help identify what is an issue and what isn't)
The issue of him not turning is seperate and needs to be dealt with seperatly after the first issue is resolved.
The employee has rights. Ensure he is given the chance to let them protect him.
The employer has rights too. Use them to protect the company.
Do you have a written and agreed disciplinary procedure and did you follow it
do you have a capability procedure and have you followed that


Remove all emotion from the facts and stick to the facts only. Anyone about to lose his job is going to come out fighting, and do not be surprised they do that. However annoying it may be, it is not a shock and should be tolerated, which is why he has advice and is doing what he is doing. This should not have been a surprise.

The other issue is to ensure you know how much it will cost your company is you terminate out of procedure. (It might be worth it, but it will not your reputation any good).


Once the issues are resolved (assuming you do not terminate his employment), then you can monitor his progress, and he will either become capable, or he will fail to achieve and will not longer be capable of performing the job you employed him for.

Have you provided appropriate training for him? (If not, you may have to consider this as a reasonable step, assuming you are not able to terminate)


You gave him a job to work for you, not work against you. You have to give him the change to perform what is asked. If he has that chance and cannot do it, he is out. You just have to prove you have done all that already.


Proper lawyer with employment knowledge needed. But it will be along the lines of the above so now you can get prepared while you wait formal advice.

 

[camerafodder]

markjay, do you have any clauses in your contracts with employees that set out examples of misconduct, serious misconduct or gross misconduct?

You also mention that your employee states that you have issued a warning without a witness present. If he is called to a meeting under such circumstances to discuss his behaviour then he does have a right to bring an accompanying witness but its up to him whether he brings one or not.

You have my sympathies as I have had to deal with similar circumstances before. I can tell you that there is no procedure prescribed in law when it comes to dismissal. You only have to show that you have acted fairly.

We had similar circumstances where a salesman was found not be performing his job (at all). As soon as we raised the issue informally he got agitated and tendered his resignation within 24 hours. He expected to be put on 'garden leave' and receive his handout. We investigated his working practices more thoroughly over the following week and found that he had done effectively nothing for several months. At this point we had a good body of evidence to show gross misconduct and we rejected his resignation and sacked him on the spot. No handout.

Also as previously advised by StuartK you could consider the services of someone like Peninsular Group if you feel it could get complicated. I suspect your employee is already in touch with and taking advice from ACAS who are generally biased towards the employee.

 

[markjay]

Thanks scumbag.

1. Our company has disciplinary procedures and they have been followed. The procedural errors he mentioned are not based on our own procedures, and he does not specify where he got them from, so it is not clear to me if he found these somewhere (e.g. ACAS) or he simply made them up - I honestly don't know. One point which he raised was that the fact that he was being suspended at full pay was communicated to him verbally but not in writing. It was also communicated to him by email but only one week after the verbal communication. He may be right in that the suspension should have been communicated to him in writing, I don't know, our own procedures don't state that. But the point is that he is explaining that these procedural errors which he believes occurred justify his not attending the Hearing.

2. I am not directly involved with this company. I was asked to deal with this situation by another director because I am the 'old sage one' who would deal with this issue impartially. Interestingly, the employee also asked me to be involved for the very same reason. But the difficulty I have is that at every turn his actions seem to widen the gap between us and him. I don't know what he was trying to achieve by avoiding the Hearing.

3. When he realised he was about to face disciplinary action again, he submitted a resignation letter with the final date being months away. He seems to be trying to tell us that if we accept it and drop the disciplinary action then the problem will go away. At a not inconsiderable cost to the company, obviously.

4. Given that the disciplinary issue occurs on average twice a week, over the past year, and that he had a dozen of informal warnings and three formal ones, I think he realised by now that he is unable to work for us. Incidentally, he has always behaved on this way, but this only became an issue when we moved to new premises and his new manager started paying attention to it.

5. He requested training and was offered it but for whatever reason decided not to take it. Knowing what I know now, it is not impossible that the request for training was simply a delay tactics to buy him more time on our payroll rather than a genuine attempt to try and improve and resolve the issue.

6. So in short it is very possible that my attempts to bring the matter to an amicable resolution are failing because on his part it is only doing this for appearance but in reality he has no intention to try and keep his job.

 

[markjay]

Camerafodder, I can't be too specific, but the 'offence" is one that anyone will immediately recognise as a disciplinary issue. Our employee handbook clearly says so, but in reality it is universally accepted anyway as something that you will get an employee dismissed persists. He does not deny the actual events, nor that he was wrong to do what he did, his only complaint so far is the procedural errors he claims occurred and which to his mind meant he did not have to attend the Hearing.

 

[brucemillar]

Mark

I would say again, that I suspect that your employee is being advised here!!

Having the freedom to invite a witness of your choice (the employee) or having a witness provided is a standard obligation in disciplinary hearings. That is to protect both parties. This would normally be expected to be invoked at the first written warning, but some would advise at the first of any warnings (given the risk/issue that you now face).

The idea is to remove the "cat & mouse, he said that you said" arguments and also to ensure that a fair and independent audit trail is available to all if required.

In the case of a verbal warning? This by default is unlikely to happen, it can be followed up by by inviting the employee to a hearing to discuss the verbal warning and allowing them a witness in the room. This again must not be done to intimidate either party. The presumption here is that you both working to resolve the dispute and not engineering an eventual dismissal.

If the employee fails to follow your laid out procedures and has been made aware of these procedures in writing? they can be reasonably dismissed for doing so. Again this assumes that the employee does not have good reason for failing to comply. So having the hearings in their normal place of work in their normal working hours where they could have been expected to be at work is a good start.

A well advised employee has an advantage over you in one sense. They can to some degree play the system in the knowledge that you will want them gone and may pay to get to that point. That may be apply here? hence why I say it may be cheaper and less stressful to have the talk that says that the trust between both parties has gone to the point where the relationship cannot reasonably be expected to continue. Therefor you are prepared to to offer the employee £xxx in full and final settlement.

A good employment lawyer will have you sorted in a very short time and will also help with any gaps in your existing procedures (if there are any) and prepare you well for any future incidents (should some view this as a precedent).

Good luck. This is never nice and just adds stress.

 

[Mrhanky]

Any employee with house insurance and legal cover can get legal costs covered up to generally £40k. Only after a solicitor generally of the insurance companies choosing agrees there is at least a 51% chance of winning at tribunal.

My point saying the above is make a mistake or your handling of this case and you can have an issue on your hands at no cost to said employee. From what has been posted already I think he has received advice not from Acas but a proper employment legal professional.

 

[Druk]

Mark.

I know nothing about employment law but it may help your thought processes if you.....


GET SOME SLEEP.

 

[Giantvanman]

I'm with Druk on that. Looking at the times of your posts, you need to find a distraction.

My wife went through this. She was a manager/head of compliance at a well known international law firm and they had an employee of a similar calibre and outlook. In her instance, as soon as the second chances and warnings ran out, the race card was played.

Being a very large law firm, they had eminent employment law practitioners and partners who were itching to tear the employee and her council up for ar5e paper but The Company decided it was cheaper to settle....pay off....rather than have costly staff away from their desks for a week in Croydon.

And that's why I write this. As a direct result of the firm taking the easy, cheap route, staff morale hit the floor. Colleagues, managers and staff had done nothing wrong, had been wrongly accused of all sorts but had no opportunity to defend and clear their names.

Net result, the lying, manipulative game player received a tidy sum and my wife could only take small consolation from declining to agree to any of the many requests for references she received. She and her staff were devastated by how the firm put their finances over employees personal reputations which contributed in no small part to my wife deciding to retire early.

In short, as long as you have a tight case, I'd make sure the firm fought rather than payed off.

 

[Meldrew2]

Just my 2p...

Prune this rotten wood. Just pay the period to his resignation.

It's only money. And with him gone, you can concentrate on making money again.

It might be wrong on principle, but don't stand on principle.

Get rid, and get on with life.

 

[optimusprime]

This is very interesting .And a lot like a problem i had with one employee .The said gent was ill at work , not once but several times .To this ,the nurse sent him home day, after day . His job was linisher operator, or polisher .And he had colapsed on to the floor each and every time he had problems . Well to cut it short, on his return after this problem had been sorted out by his GP . The one day he showed up at 8 am to start work .I told him that his job was taken ,and that he would be reinstated untill a time we thought he could do the job again. And i would find him another job till then To that he walked out ,saying he would take us to a trbunal.This he did.. But lost on the fact that a job was there for him to do. But he refused to do it. So he went with nothing in the end. Good luck ,but keep you back covered .

 

[Deleted member 6183]

If he has given you a written resignation could you not just pay him the contractual notice and put him on garden leave?

The difference in salary terms between this and dismissal can only be around 3 months.

 

[MD5]

Sorry for an unqualified thought process, but if someone offers their resignation, they have showed that they no longer wish to work for your company. Are you legally obliged to accept anything more than the minimum notice both sides have agreed to in the contract of employment?

I'd be interested to find out whether or not once notice has been given, it could be accepted, but dated from the date it was tendered and for the minimum period required, rather than post dated, as in this case. If there was a different relationship with an employee, a lengthened notice period may be mutually beneficial, but this clearly isn't the case here.

 

[Peter103]

Mark.

I know nothing about employment law but it may help your thought processes if you.....


GET SOME SLEEP.

MJ does not require sleep, he is robotic and has acquired the enviable power of perpetual
motion, when at rest, he is as a coiled spring!

 

[scumbag]

now that he has offered his resignation, you can pay in lieu of notice and it takes place with immediate effect.


Or as suggested above, pay him but ask him not to work (gardening leave) however legally he cannot accept employment with someone else while this is occuring which might not be fair or warranted.

Pay up and send him on his way. Job done.

Bye and thanks for coming.

 

[PXW]

Have had a case fairly recently where the employee didn't turn up (and didn't communicate other than a brief email about five minutes in advance). We considered at the hearing whether to adjourn but for a number of reasons decided to go ahead in his absence. Result was that he was dismissed. We never heard from him again. But had we taken the choice of deferring the meeting he would only have been given one more shot, then we would have heard the issue in absentia. The key here is that while suspended on full pay the employees work time is still available to the employer's reasonable requests unless they are sick etc. And in our policy there is an explicit rider that any disciplinary matters will be dealt with with the minimum possible delay.

In that case I was the investigating officer so had interviewed the many witnesses (and had notes of those interviews drawn up and settled). There is no requirement that I am aware of for anything disciplinary to be done in front of witnesses - my understanding is that best practise is the opposite.

You and your advisers are best placed but it may well be that given the repetition you describe, the matter might be fairly treated as gross misconduct anyway, without the need to go through all the steps - you don't necessarily have to escalate step by step. In which case his procedural objections are pretty much irrelevant.

 

[TheFoX]

I haven't read all the posts in this thread but one thing did stand out at the start, and that was his declining the initial disciplinary meeting because he wasn't prepared. In my opinion, as a retired Shop Steward, is that the only time an employee can delay a meeting is if their Union Representative was unavailable, and in this instance would submit a date for when their Representative was available.

To decline a meeting just goes to show the deviousness of the character. Anyone who is innocent of an allegation would go out of their way to dispel such allegations, yet this character is doing the opposite.

Firstly, be very firm in what you do. Unless there is a genuine mitigating circumstance, such as illness or lack of Union Representative, he should attend the meeting you have arranged. Secondly, as the employer, you name the date and time, not him. When was the last time you heard on an employee dictating terms to a company? It just never happens.

I would also state that if you communicate with an employee formally, use ink. Don't send an email requesting a formal meeting. Send a letter. If the meeting could culminate in a disciplinary, also include your disciplinary and grievance policy, and also give them 24 hours notice.

ACAS has some excellent guidelines for dealing with these matters, and is worth downloading and reading.

Good luck in this issue.

 

[Lyserman]

I second the ACAS guidelines for anyone in a managerial role.
When I had a disciplinary issue with two people stealing, the HR department were worse than useless.
I downloaded the ACAS guidelines, followed them to the letter and they were successfully dismissed for theft.
HR didn't know what steps to take in the whole process and the ACAS guide made it surprisingly easy, despite the said employees trying to be smart about it all.

I too wish you luck in this sorry affair.

Tony

 

[TheFoX]

When I had a disciplinary issue with two people stealing, the HR department were worse than useless.
I downloaded the ACAS guidelines, followed them to the letter and they were successfully dismissed for theft.
HR didn't know what steps to take in the whole process and the ACAS guide made it surprisingly easy, despite the said employees trying to be smart about it all.

I spent four years in a managerial role metering out discipline as and when necessary (not all discipline is formal; often improvement meetings can resolve matters before they escalate). After I stood down in that role, I took on another role as a union representative for a few years. I discovered that in that six year period only one person I knew in HR had any real grasp of employment law.

Many of the cases I represented as a union rep were dismissed due to poor quality paperwork. Ironically, dates and times were the most obvious reason for dismissing a disciplinary case. I found it ironic that these clerks could get the year wrong time after time.

I also found that HR clerks did not understand the implications of the Data Protection Act, and their responsibility under the act. I was once shown footage of an employee in a compromising act, and they had failed to conceal the identities of other employees in the vicinity, even though the Act required this, and their monitoring equipment was accessible by anyone because it was housed in an unlocked office with monitors being easily viewed through external windows.

 

[guyvert1]

crikey, you really shouldn't be airing this in a public forum !!!

 

[219]

Sorry for an unqualified thought process, but if someone offers their resignation, they have showed that they no longer wish to work for your company. Are you legally obliged to accept anything more than the minimum notice both sides have agreed to in the contract of employment?

I'd be interested to find out whether or not once notice has been given, it could be accepted, but dated from the date it was tendered and for the minimum period required, rather than post dated, as in this case. If there was a different relationship with an employee, a lengthened notice period may be mutually beneficial, but this clearly isn't the case here.

I don't know the answer re the notice period , nor much else about employment law , but one thing I do remember from past experience of once being made redundant from a company which wasn't doing too well ...

I was called into a meeting , and offered redundancy ( along with a few others , each in their own private meetings ) which , after consideration , I accepted . Besides my entitled redundancy payment , I was offered a month's pay in lieu of notice , but the interesting thing was that , because I wasn't required to work the notice period , I didn't have to pay any tax on that month's pay .

All of this took place about a week before the end of a month , and it was agreed that I would work up to the last day of the month , which fell on a Thursday . In the meantime , I had phoned around and sorted out another job , so I left the first company , on very amicable terms , on the Thursday night and started my new job on the Monday morning , with a nice little nest egg in the bank .

The only relevance of the above is this - that by offering this employee a certain amount of payment in lieu of notice to terminate his employment , it would be tax free for him - and that might be an incentive for him to accept ?