Practice Notes on Termination of Employment Law

Question: Describe about the Practice Notes on Termination of Employment Law? Answer: Introduction It is important to follow discipline at a workplace for creating a healthy environment by filtering the behaviour of the employees by a set of rules and regulations, which the employees are compelled to follow. Rules and regulations on how an employee should behave in a workplace are necessary to make employees complete work on time, meet targets and create a healthy environment at work. Discipline in workplace can be in a form where higher management and supervisory personnel check and correct the bad behaviour of the employees and ensure that the employees follow the rules, which are set to maintain discipline at the workplace. The primary motive of having disciplinary rules at a workplace is to filter the behaviour of employees and not to punish. The Employment Act 2008 and the ACAS statutory code of practice on discipline are primary legislations, which govern disciplinary rules and procedure in the United Kingdom. For the Part 2 of this report, the company selected is Prestige Nursing and Care Agency. The primary purpose of this nursing and care agency is to support health providers and hospitals across United Kingdom, the best and highest standards of nursing care whenever needed throughout the day. The Prestige Nursing and Care Agency was started with an aim to provide trusted nursing care to government and private health care clinics and hospital on extremely short notice. The agency started its services in the year 2001 and is going strong since then in fulfilling its aim and purpose. In the United Kingdom, there are many labour laws, which govern disciplinary rules and procedures at a workplace. The primary legislations on the disciplinary procedures are found in the Employment Act 2008 and the ACAS statutory code of practice on discipline, which was issued under section 199 of the Trade Union and Labour Relations (Consolidation) Act 1992. The said Code came into force by an order passed by the Secretary of State on 11 March 2011 and replaced the code effective from 2009 (Guardiancich 2010). Most of the companies in the United Kingdom follow an implied term of disciplinary procedure mentioned in the employment contract, which the employee signs and acknowledge when he starts work with a particular company. However, even after having an implied term, every company has a specific code of conduct, which is essential for every employee to follow (Wilson and Game 2011). Companies set up a disciplinary code of conduct to create a healthy environment at their workplace. Certain practices or policies under the best management of disciplinary matter in a company are as follows:- The primary purpose of having a disciplinary policy is to promote fairness and transparency. This purpose can only be achieved when a company has written and specified rules for discipline and code of conduct (Cane 2011). The employees and managers of the company should participate in developing the rules, and everyone working in the company should be explained the rules and code of conduct properly with the help of disciplinary sessions and meetings. Whenever an employer takes any disciplinary action, the same must be executed with fairness and following a proper disciplinary procedure, which is to be followed by a systematic method. This method includes the following steps:- Employees should be provided with a detail of allegations, which he is charged with along with any evidence, which the company has in support of the employee's misconduct. It is unfair to fire any employee for the breach of his first disciplinary policy unless the misconduct is serious and gross in nature (Boyle 2011). Every employee has the option of filing for an appeal against his termination on misconduct as a ground (Deakin and Morris 2012). It is the duty of the employer and the management to first try to resolve a disciplinary situation or a misconduct of an employee by formal discussion and it is a pre-requisite before any formal disciplinary action is taken against the employee for misconduct However, if an employee is continuously involved in misconduct, he should be giving a verbal warning. Such verbal warnings are usually recorded by the management of the company but are ignored if the employee shows improvement of behaviour However, if the employee still continuous with misconduct, the company and its management can issue a written warning to the employee. However, after the first written warning, if the employer still feels that there is no improvement in the employee's behaviour, a final warning is issued to the employee. This warning is recorded, and the employee is on an check for 12 months before the said warning expires. An employer has all the rights to terminate an employee with immediate effect, in case of gross misconduct (Collins, Ewing and McColgan 2012). An employee can appeal against the dismissal order within five days from the time the said decision is communicated to the employee. As mentioned above, a disciplinary action can be of two different types, which is misconduct due to bad behaviour of an employee and misconduct due to poor performance. An employer sticks to capability procedure as mentioned under ACAS statutory code in case of an employee shows continuous poor performance failing to maintain the required standard needed by an employee in the concerned company (Davey and Dix 2011). The capability procedure is a little different from the procedure, mentioned above, but the essence of both the procedures is the same, being fairness. The capability procedure involves capability hearing where the employee who shows poor growth is heard and is sent to appropriate training to improve his efficiency. However, even after all the efforts to retain the employee, the company still feels performance of the employee is poor the employee is terminated. The employee has the right to appeal. The most significant challenge, which employees face while implementing disciplinary process in workplace, is the lack of a sound disciplinary policy. The foundation of having a well-executed disciplinary process is to have a written and precise disciplinary policy, which is explained well to the employees who should participate in forming the same which will motive the employees to comply with the process, and the policy in a better manner. Another challenge, which most workplaces suffer from, is poor communication between the top management and the managers, which in return effects the communication between the managers and employees. This problem can be resolved if the employer identifies which is the best communication technique to send clear messages to the employees of his workplace (Bowers 2012). Another challenge, which an employer faces while conducting disciplinary process, is to prove that the process followed by him was fair. As most cases are appealed, it also increases the cost for an employer, as he has to prove in front of an appropriate tribunal that the dismissal was based on fair grounds. In Bowater v Northwest London Hospitals NHS Trust, a nurse from a reputed agency was handling a man who was naked and unconscious, and the employer of the agency dismissed her on her misbehaviour and misconduct in handling the said patient. The tribunal stated that the dismissal was unfair, and the Appeal Court upheld the decision of the Tribunal stating that the nurse was not given the right to express her side of the story before dismissal. In another case Williams v Compair Maxam Ltd, the judge stated that proper disciplinary procedure including giving warning, consulting union, setting and following criteria and checking if the employee can be allotted another task instead of dismissal needs to be executed every time an employer decides to dismiss an employee. Therefore, an employer dismissing employees on personal preference is considered very unfair (Vandekerckhove and Lewis 2012). The Prestige Nursing and Care Agency is an agency, which provides well-trained and efficient nursing facilities to various governmental and private hospitals and clinics across the United Kingdom. The primary motive of the said agency is to provide nursing facilities at very short notice and 24/7 through the day. The agency was started in 2001 and is working strongly and efficiently since then in providing best nursing facilities in United Kingdom. However, for an agency to have growth to be the best in 10 years, the agency surely had well-trained and organised work policies. This includes a well-organised disciplinary policy, procedure and practice. The Prestige Nursing and Care Agency has a very sound and well-drafted disciplinary policy and process (Holman et al. 2012). The objective of the disciplinary policy and procedure of the Prestige Nursing and Care Agency is to ensure that the said policy and procedure is based on principles of fairness and transparency while dealing with disciplinary complaints following the appropriate employment and labour legislation made in the United Kingdom (Dismissal 2013). The principle of the said policy is that no employee in the agency will be terminated unless any misconduct is properly investigated and proven. No employee will be terminated on first incident of misconduct unless the misconduct is serious and gross in nature. The said misconduct can be in any form being poor performance or negligence or behaviour misconduct (Yeomans 2012). The disciplinary procedure, which the agency has adopted, is as follows:- Informal Discussion Before any formal action against an employees misconduct is taken, the misconduct situation is to be handled by informal discussion where a verbal warning can be given Procedural Steps The procedural steps start with an investigation into the misconduct. If the investigation is positive, the employee against whom the disciplinary procedure is carried for is notified via a written letter to appear in a meeting. At the meeting, the employee will be given a chance to explain himself and can be given a written warning or a poor performance notice. Final Warning: After the first written warning, if the employee has failed to show any improvement, he is issued with a final written warning. This warning is active for 6 months where the employee is constantly observed and the warning expires if no case of misconduct appears in those six months. Termination: However, despite the warning, if the employee continuous with poor performance or misconduct, the employer is permitted to terminate the employee. An employee has the right to appeal at any stage of the disciplinary process. Human Resources policies are a set of policies and rules on how a majority of issues and departments need o be handled in an organisation. The Human Resources policies state various principles, roles and rules that every manager and employee needs to comply with working in an organisation. The disciplinary process commences only when an employee is engaged in some behavioural misconduct or has constantly proven as a poor performer in an organisation. Therefore, many-a-times a significant problem, which an employer faces while implementing a disciplinary process, is rendering justification that the termination of an employee is based on the principle of fairness. Every Human Resources Policy, requires a company to establish an Equal Opportunity status for every employee irrespective of their age, colour, race, religion and sex. Therefore, the biggest challenge, which an employer faces, is to balance between the disciplinary processes keeping a check that the Human Resources Policies a re not being violated (Wells 2012). It is very often seen that employers tend to remove employees according to their personal preferences taking the advantage of the disciplinary process by proving poor performance. It is therefore, necessary to establish the fairness in the disciplinary action, which takes places in any agency. Usually, an employer wishes to promote his favourite or preferred employee, and decided to terminate a deserving employee, in such cases where the Human Resources policies of Equal Opportunity conflicts with the disciplinary procedures. Therefore, while conducting a disciplinary policy, the fairness of decision and a valid justification for dismissal is necessary. However, with the option of appeal available to the employees, the employers in the recent times have become more careful while conducting disciplinary procedures. The disciplinary procedures, therefore, need to be according to the Human Resources policies of the organisation and the appropriate employment legislation formed in the Un ited Kingdom (Dix and Barber 2015). In the case John-Charles v NHS Business Services Authority 2015 mentioned in the assignment, employer of an IT company was given written warning on January 2013. In a disciplinary proceeding conduct, he was given a warning when the manager conducting the proceeding learned that he was already given a written warning earlier. In my opinion, in the said case, the employee had to be explained properly on what grounds the first warning was issued. Unless an employer makes it clear what was the misconduct by an employee, warning or dismissal makes no sense. In the said case, the employer had to give the employee a warning followed by a chance to explain his case. If the employer knew why he was being dismissed, he could come up with a valid justification if any, which every individual deserves to be asked before any action is taken against him or her. This forms a basic principle of law of natural justice. In the given case, as the employee was not given a chance to explain his case as he lacked the knowledge of all the reasons, which contributed to the employers decision to dismiss him, the dismissal was unfair, the correct way would be stating all reasons, hearing the employee's justification and then deciding on dismissal, in case, the justification appeared to be unsatisfactory. Thus, by not following an appropriate process the dismissal in the said case was unfair as it conflicted with the rules of natural justice, which are essential to be followed in every case (Wilson and Game 2011). Conclusion Thus, it is essential for every company to adopt and follow a well-drafted disciplinary policy and procedure, which is complementing to the Human Resources Policies and the employment legislations. In addition, fairness is the key principle in implementing any disciplinary policy and procedure. Unless a disciplinary procedure is considered as fair, the dismissal of an employee will not be upheld, in case, the employee appeals against his dismissal. Recommendations In my opinion, every company must comply with employment legislations in the United Kingdom and formulate an appropriate disciplinary policy and procedure, keeping in mind that the policy is based on fairness and does not conflict with Human Resources policies. However, the concept of freedom of speech should be incorporated in the disciplinary procedure, which suggest that the employee who is being held for misconduct is given a chance to present his case and justify his situation. Reference List Bowers, J. ed., 2012.Practice Notes on Termination of Employment Law. Routledge. Boyle, S., 2011. United Kingdom (England).Health Systems Review. Copenhagen: WHO Regional Office for Europe. Cane, P., 2011.Administrative law. OUP Oxford. Collins, H., Ewing, K.D. and McColgan, A., 2012.Labour law. Cambridge University Press. Davey, B. and Dix, G., 2011. The Dispute Resolution Regulations two years on: the Acas experience.ACAS Paper,7(11). Deakin, S.F. and Morris, G.S., 2012.Labour law. Hart publishing. Dismissal, W.I.U., 2013 Dismissal. Dix, G. and Barber, S.B., 2015. The changing face of work: insights from Acas.Employee Relations,37(6), pp.670-682. Guardiancich, I., 2010. United Kingdom: current pension system; first assessment of reform outcomes and output.European Social Observatory, pp.1-9. Holman, D., Lamare, R., Grimshaw, D., Holdsworth, L. and Marchington, M., 2012. The Diffusion of GoodHR Practices Across the Supply Chain.ACAS research paperAdvisory Conciliation and Arbitration Service, London. Nairns, J., 2011.Employment Law Statutes 2011-2012. Routledge. Peters, J., 2012.A Straightforward Guide to Probate and the Law. Straightforward co Ltd. Vandekerckhove, W. and Lewis, D., 2012. The content of whistleblowing procedures: A critical review of recent official guidelines.Journal of Business Ethics,108(2), pp.253-264. Wells, A., 2012. Employment: A Revolution in Employment Law?.Business Law Review,33(11), pp.267-272. Wilson, D. and Game, C., 2011.Local government in the United Kingdom. Palgrave Macmillan. Yeomans, P., 2012. Law and ethics in primary care: belief issues.British Journal of Healthcare Assistants,6(10).