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2. Establishing a disciplinary procedure
[ch 2: pages 8-9]Workers need to know what standards are expected of them and what is likely to happen if those standards are not met. It is not appropriate to discipline someone who did not know their behaviour was against the rules. Those rules must be clear and adequately publicised. For example:
Ms Goudie was dismissed for unacceptable misuse of the employer’s computer facilities. Her employer had never made it clear that there was a policy against personal use, so her dismissal was unfair.
Goudie v Royal Bank of Scotland Plc [2004] AllER 33
Mrs Graham, a benefits manager with 30 years’ service, was dismissed for gross misconduct when she helped a young benefits claimant in difficult family circumstances who was a “friend-of-a-friend” of her daughter to make a job search at work. She was accused of breaking DWP rules banning staff from dealing with an “acquaintance”, and of taking him “staff-side”. The dismissal was unfair, partly because at the time of the dismissal the DWP rules on who was an “acquaintance” and on taking non-employees “staff side” were not sufficiently clear.
Graham v Secretary of State for Work and Pensions [2012] EWCA Civ 903
The need to spell out rules and sanctions clearly is especially important for conduct outside work. For example:
Mr Smith, a housing manager at a housing charity and a practising Christian, wrote comments on his Facebook wall at the weekend, opposing gay marriage. As a result he was disciplined and demoted. The employer argued that its Equal Opportunities Policy and Code of Conduct were contractual, that Smith broken his employment contract and that it had the contractual right to demote him. The judge disagreed. Where a breach of a work rule can have serious consequences such as demotion and loss of pay, said the Court, the employer must tell the employee very clearly what is and is not allowed and the risks if rules are broken, all the more so where an employer wants to control behaviour outside work.
Smith v Trafford Housing Trust [2012] EWHC 3221
The Acas Code emphasises that a disciplinary procedure should not be used by employers primarily as a means of punishing employees but rather to help or encourage improvement in performance or conduct. It also requires employers to help all employees and managers understand the rules and procedures, where they are found and how they are used. This means an employer must make sure:
• rules are written using simple clear language;
• rules are understood by all, including those whose first language is not English and young workers without previous work experience;
• appropriate information, training and signage is provided on what is and is not allowed. Training could be part of an induction package, with refresher courses as appropriate. In some cases, simple reminder mechanisms can be used (for example, automated reminders of an employer’s email policy); and
• training must be provided to managers responsible for implementing the rules.