Disciplinary and Grievance Procedures - Essay Example

? UNFAIR DISCRIMINATION EMPLOYMENT LAW [Pick the HP Introduction Rodney had been working for a seed wholesaler firm called the Green grass Ltd. Rodney held the post of accountant in the firm for fourteen years. During an audit it was discovered that the Green grass ltd. accounts held a variance of ?15,000. Rodney was considered responsible for the misdemeanor based on his history of conviction for dishonesty 20 years prior; and summarily dismissed by the CEO of the firm after calling him into the office. Although convicted for dishonesty 20 years earlier, yet he had a clean and honest record at Green Grass Ltd during the 14 years of employment. Still before being dismissed no in depth investigation was conducted into the matter and also Rodney was not provided with any explanation what so ever of how the firm reached the decision. At the same time the CEO refrained from providing Rodney a chance to say anything in his defense, and no compensation was awarded for the sudden dismissal. Compensation can be claimed by Rodney provided the dismissal is proven to be either wrongful or unfair. Although the ACAS cannot be legally and lawfully implemented yet it is a disciplinary guideline for employers to manage their workforce and is given importance during the legal proceedings if a tribunal hears the case (Bell, 2006) Rodney’s employment termination will be classified as wrongful and unfair by ACAS (ACAS, 2013). The unfair dismissal can be characterized with regards to the band of reasonable responses test and the procedural fairness (Bell, 2006). Rodney can claim a grievance for Supervisory practices (OPEIU, 2013; ACAS, 2009). He can be compensated for being unfairly dismissed. Green grass ltd. can claim that a contract breach can occur on suspicion of theft and Rodney be dismissed without any sound proof; not holding green grass ltd. liable to remedy Rodney’s dismissal. Wrongful Dismissal of Rodney Wrongful dismissal occurs when a breach of contract occurs and an employee dismissal occurs prior or proper notice; wrongful dismissal is not the same as unfair dismissal (Gov, 2013). Also the failure on the part of the respective employer to employ and follow the related disciplinary procedures of contract can also be regarded as a wrongful dismissal (Compactlaw, 2013). With Rodney being employed for 14 years the CEO of Green grass ltd. should have provided him with 12 weeks (1 week for every year) worth of notice before dismissing him; as it the maximum period allowed (compactlaw, 2013). But for the assurety of wrongful dismissal the contract will need to be studied. Remedies for Wrongful Dismissal Following remedies can be claimed for wrongful dismissal (compactlaw, 2013): 1. Unpaid wages 2. Money for correct notice 3. Perks 4. Pension loss 5. Commission, bonus payments Unfair Dismissal of Rodney The Dismissal of Rodney will be regarded as unfair by the Government of United Kingdom as the CEO of Green Grass ltd. had no satisfactory reason behind dismissing Rodney and also he did not follow the disciplinary procedures of the company to authenticate the dismissal (Gov, 2013). According to ACAS (2013), the dismissal is ‘automatically unfair’; irrespective even if the employer used a reasonable cause to terminate the employment of Rodney since he had been a full time employee at Green Grass ltd. for the past fourteen years. The employee also needs to be an employee of the same firm for a continuous period of two years to qualify for unfair dismissal (Compactlaw, 2013). The only way the dismissal could have been categorized as fair if the employer would have been able to prove that the decision to dismiss Rodney had been carried out for; misconduct, incapability or being unqualified for the job, redundancy or statutory restrictions on job continuation (ACAS, 2013). The CEO accused Rodney of misconduct in terms of dishonesty and misplacement of monies from the accounts and dismissed him providing no further reason for the dismissal. The unfairness of the dismissal when being judged by a tribunal will be done by addressing two issues, whether the response of the CEO was a part of the band of the reasonable responses and by the procedural fairness of the disciplinary hearing (Bell, 2006). Reasonable Responses Test The reasonable responses test is a group of responses of the employers that is considered to be normal practice during handling issues of misconduct (Bell, 2006; UKPLC, 2012; Smith & Thomas, 2007). While considering the conduct of the employer the tribunal will only consider the facts that the employer possessed at hand (Bell, 2006). If the tribunal decides that the decision taken by the employer to dismiss the employee was reasonable and any reasonable employer would have done so under the circumstances, then the dismissal is ruled fair (Smith & Johnson, 2007). During judging the demeanor of the CEO on the band of reasonable responses, it is necessary that the tribunal should judge each case based on its individual facts and not associations (Bell, 2006). The decision of ruling the dismissal fair is also particularly dependant on the procedural fairness of the disciplinary hearing conducted by the CEO; even being argued to the extent that the test for reasonable responses not only encompasses the decision to dismiss but also the fairness of the procedure as well (Smith & Johnson, 2007). Procedural Fairness According to Bell (2006), it is very likely that a dismissal that has been characterized to be within the limits of a reasonable response is considered as unfair on the basis of procedural fairness. The ACAS practice code of 2004; outlines a procedure for handling misconduct by an employee (Bell, 2006). Bell (2006) holds that if an employer has followed the ACAS code the dismissal will be regarded as fair by the tribunal as well but negligence in procedural fairness will render the dismissal unfair. When the gross misconduct comes to the notice of the employer he should try and establish the facts regardless of the potential liability of the misconduct to invoke dismissal (ACAS, 2009). Firstly, the employee should be made aware of the allegations against him and may be suspended for some time with full pay; but this should only be done after carefully analyzing the previous conduct of the employee; the employee should be made aware that this is not a judgment on the employee or disciplinary action (ACAS, 2009). In particular cases investigatory meeting could be held before the disciplinary hearing; whichever is done first should be done without any unreasonable delay on the part of the employer (ACAS, 2009). During the disciplinary hearing the employee should be given every opportunity to present their case; not prohibiting them from bringing someone qualified to accompany them during the hearing (ACAS, 2009). Only after hearing facts from everyone should the employer take any strict action like dismissal (ACAS, 2004). All these proceedings should be penned down with clarity and specificity (ACAS, 2009) One way that the employer can dismiss the employee summarily is by writing to the employee about the reason why he was dismissed and provide the employee with an opportunity to hold an ‘appeal meeting’; if the employee wants it (ACAS, 2004). This is a modified statutory procedure (ACAS, 2004). The unfairness of dismissal by the CEO is quite evident in the lacking procedural fairness during the disciplinary action that was taken against Rodney. When made aware of the discrepancy in accounts the employer should have established the facts first and made Rodney aware of the allegations against him. Rodney should have been given a chance to present his case during the hearing but since no hearing was conducted, Rodney was devoid of this. The CEO of green grass ltd could have followed the modified statutory procedure but that did not happen as well. He did not give Rodney a chance for the ‘appeal meeting’. Remedies for Unfair dismissal After the dismissal being declared unfair, Rodney can be remedied or compensated in the following three ways: 1. Reinstatement The decision to reinstate Rodney will result in the CEO of green grass ltd to treat Rodney as if he had not been dismissed, and providing him with the liable increments and any arrears that have arisen in the pay (Bell, 2006). 2. Re-engagement The other way the unfair dismissal of Rodney can be remedied is that he should be engaged on either the same work position or something comparable with the post of accountant; but it will be on the terms and conditions as outlined by the ETA (Bell, 2006). But the problem with reinstatement and re-engagement is that due to shattered trust the arrangement does neither work nor last (Bell, 2006). 3. Compensation Compensation occurs in the form of monitory award to compensate for the loss to which the employee has been subjected by being unfairly dismissed; additional award resulting from the employer being unable to reinstate or re-engage the employee (Bell, 2006). The basic award is ?8700, ?290 per week, but it wholly depends on the tribunal whether it increases or decreases the amount as per the case (Bell, 2006); the maximum being ?87, 700, resulting from a combination of basic and compensatory award (Compactlaw, 2013). Advice to Rodney Rodney should raise a grievance for supervisory practices in the firm and request to present his perspective as not saying anything will also go against him. If his grievance is not heard at the firm and he is not compensated for being unfairly dismissed, Rodney can file for compensation to the ETA either under unfair or wrongful dismissal. Rodney qualifies for compensation under both unfair and wrongful dismissal. But the compensation received under one claim will nullify the compensation received under the other thus he should file for only one. Rodney should file for compensation for unfair dismissal. An investigative or disciplinary meeting was not held at the firm and the allegations against Rodney were not proven yet he was dismissed from the job. Rodney was not given a chance to explain or present his case. Rodney should file the claim within three months of the EDT; otherwise he will not be eligible for the compensation. Advice to green Grass ltd. In response, Green Grass ltd can hold it in their favor that they can summarily dismiss Rodney on suspicion for theft. The CEO of Green grass ltd does not have to have proof and suspicion suffices for taking such an action; as per law the evidence which is gathered after dismissal will be sufficient to justify summarily dismissing Rodney (compactlaw, 2013). Compensations under Equality Act The equality Act of 2010 provides protection to 9 characteristics from discrimination (UKPGA, 2010). One of those characteristics is disability resulting from physical or mental impairment; resulting in impaired day to day functioning (UKPGA, 2010). Disability is legally covered by the ‘public equal duty’; due to which the employer hiring a disabled person will have to reasonably adjust the environment to the disabled person so that he can be helped in giving his best (ACAS, 2011). Rodney was bipolar and on prescribed drugs but as he did not administer those drugs regularly, he showed high susceptibility of suffering episodes of either mania r depression. Also, his employer, the Green Grass ltd was unaware of his condition; and that due to non-administration of drugs he suffered episodes of maniac-depression. Green grass ltd cannot be believed responsible for discriminating against Rodney for his disability as they were unaware of his mental impairment. Due to the ignorance Rodney cannot claim any compensation under the Equality Act of 2010. Law does not hold Rodney liable for hiding his disability from his employer (Honeyball, 2012). Rodney should not try to claim compensation under the Equality Act and try and solve the problem within the firm if possible by asking someone qualified from within the firm to mediate between the firm and Rodney. Conclusion Rodney has been unfairly and wrongly dismissed, for which either he should raise a grievance or file for compensation. Dismissing an employee should always be the last resort of the employer, as employees fail to provide healthy output if they are always under the threat of being dismissed without any reason whatsoever. Compensation laws for protection against unfair and wrongful dismissals are there to protect employees from such authoritative conduct of employers. Unlike Green grass ltd. firms should also outline proper procedures for dealing with misconduct, which will reduce their chances of landing into trouble in such cases and will ensure clarity and transparency of investigations and allow the employers to make informed decisions. The mental condition of Rodney could have been an issue if and when his employer were aware of the condition; but since that was not the case Green grass ltd. could not be believed to have discriminated against Rodney. Rodney also can’t be held in violation of any conduct or law by hiding his condition as many in his place would do the same to avoid being judged and discriminated against. References ACAS. (2004), “Disciplinary and Grievance Procedures”, The Stationary Office. 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