Obligations,Contracts,DisciplineandGrievanceHandling(英文版)

1、 Chris Jarvis1HRMObligations, Contracts, Disciplineand Grievance Handling Chris Jarvis2HRMBackgroundcontract - central to Er-Ee relationship(offer, acceptance, consideration) negotiated/agreedplus common law/statutory regulationsocio-econ. exchange - open-ended unlike commercial contractsjob contrac

2、ts & managerial power/authorityan equal balance in service relationship?subordination to reasonable & legitimate authorityemployer determines organisation of work and standards (reasonable) delivery of performance, motivation + loyalty, commitmentcommon law duties of employer & employeeE

3、xpress and implied terms (general obligations) Chris Jarvis3HRMexpress or implied, verbal or in writing“usually concluded orally by people who rarely think out still more rarely express, any terms” 1940subject to statutory regulationChanges to the Contract?mutual consent? within scope of effort-rewa

4、rd relationship?within employers (reasonable) operational discretion?Vicarious liability & Negligenceemployer liable for negligent/wrongful acts & omissions of employee in course of employment. Formation of contract of employment Chris Jarvis4HRMEmployment Rights Act 1996Consolidated earlier

5、 Acts repealed in whole or in partUnaffected Equal Pay Act 1970Sex Discrimination Act 1975Race Relations Act 1976Transfer of Undertaking (Protection of Employment) Regulations 1981Disability Discrimination Act 1995 Chris Jarvis5HRMRIGHTS AT WORK?be clear on what is expected of you?know how your mana

6、ger sees your performance?get on with your job in your own ways, once constraints objectives have been agreed?make mistakes occasionally?have a say/veto in who works for you?expect work of a certain standard from your staff?criticise performance when it falls below an agreed standard?be consulted ab

7、out decisions which affect you?take decisions on matters which affect your department?refuse unreasonable requests? Chris Jarvis6HRMEmployer obligations to employeepay contractually agreed remunerationprovide work?give lawful instructions onlytreat reasonably with respect, trust confidenceprovide so

8、und supervision job instruction?observe provisions relating to sickness, holiday pay, hours.permit time-off for public duties (statutory)indemnify / insureprovide references?provide for employee health, safety welfare provide reasonable safe working conditions (see statutory provisions)Not infringe

9、Human Rights Chris Jarvis7HRMEmployee obligations to employerready, willing available to do workwork for employer in employers timeuse care, skill, be reasonably competent not to be unduly negligentobey reasonable, lawful instructionstake care of employers property ( good will?)Fidelity: act in good

10、 faith, respect values confidencesAbsences?Industrial action?Response to operational change?Justifiable refusal to obey?exceptional dangerorder would constitute a legal offence Chris Jarvis8HRMUnfair Dismissal“Usually evident when someone has been dismissed.” The employer has clearly terminated the

11、contract?Also when:fixed term contract expires but is not renewed - is this unfair?Plus constructive dismissalemployee has reason to resign because of employer conduct Chris Jarvis9HRMAutomatic invalid reasonsEmployer prevents an eligible employee to return to work after pregnancy/childbirth - regar

12、dless of service (ERA). Sex, race & disability discrimination/victimisation/detriment - assertion of statutory rights & supportHealth & safety s.100right not to be dismissed or subject to detriment foracting as safety representative and carrying out designated activities to prevent/reduc

13、e risks & dangersPublic Information Disclosure Act 1998.Legitimate TU membership (non-membership) & activities Chris Jarvis10HRMNo right NOT TO BE Dismissed. without good reason (ERA 1996)complaint & redress to Employment TribunalPrinciplejob stake cannot be ended just by serving contrac

14、tual notice. Restraint on hire-fire employerDoes it really constrain employers freedom of action? Chris Jarvis11HRMEligibility?1 year continuous service at date of termination.no FT/PT thresholdsno service requirement for inadmissible reasonsclaim within time limits (reasonably practicable)Exclusion

15、s (Human Rights Act?) Chris Jarvis12HRMValid reasons for dismissalEmployer must show that reason or principal reason falls within ERA s96 Conductcommon, leading to the most complaints for unfair dismissalCapability or qualification for performing the workemployee unable to do job/work satisfactorily

16、 or does not have qualifications for it. Illness & frustration of contractRedundancyGenerally not grounds for U/F dismissal claim. Statutory requirementContinued employment contravenes statutory duty e.g. drivers licence, work permit.Some other substantial reason Chris Jarvis13HRMConductrefusal

17、to obey reasonable instructionsintroduction of a new working system?timekeeping, absenteeismbreach of exclusivity, trust and confidentstealing from employer (what does this comprise?)breach of safety instructions, negligence, acts and omissions.immorality, drunkennessTheft - what is theft from emplo

18、yer?Communicating, maintaining and demonstrating behaviours associated with a Code of Conduct Chris Jarvis14HRMCapabilityincompetence, ill-health, other mental & physical quality inability to develop sound relations with others?reasonableness + reasons ?appraisal processes, training & superv

19、ision degrees of incompetence . one serious lapse? Does ill-health justify an employer terminating the contract?informed judgement - circumstances & optionsinvestigate the permanently unfit to workQualifications relating to aptitude and abilityDiploma, tech. certificate, license/permit or profes

20、sional qualification.must be substantially concerned with job aptitude or ability Chris Jarvis15HRMReasons in writingentitled to be given reason for dismissal. request written reasons within 14 days (pregnancy excl.)But not if alleging constructive dismissal employer can provide written statement vo

21、luntarilyEmployees dissatisfied with not receiving a statement or believe it inaccurate - go to a tribunalWhat was reason or principal reason?Does it fall within ERA or some other substantial reason?Is this the real reason (use redundancy as excuse?)Did employer act reasonably or unreasonably? Chris

22、 Jarvis16HRMDiscipline Guidelines (ACAS)Why disciplinary rules and procedures?promote fairness & order in treatment of individuals & conduct of employee relationsassist organisation to operate effectivelydefine basic expectations and set standards of conduct at workprocedure to ensure that s

23、tandards are adhered toa fair method of dealing with alleged failure to observe themFunctional, normative, prescriptiveconfirms managerial responsibility/prerogativea conflict reduction mechanism in both unitary & pluralistic environmentsCode of “work place ethics” (moral behaviours)? Chris Jarv

24、is17HRMProcedural FairnessEmployer - to inform of rules, procedures, consequences, penaltiesFair, objective, no discriminationAvailable evidence + probability in the circumstances. Employer hasgenuine belief in the misconduct?reasonable evidence and investigation?Substantial equity and merits of the

25、 case uniformity of treatmentNotice of proceedings and preparednessDo not overlook procedural defects even if, on balance, the same decision would have been taken. Can still be U/FD. Stick to procedure.Caught “inflagrante delicato” e.g. + ve drugs test (airline or oil-rig)?“It is alleged that” emplo

26、yee did something outside work? Establish the truth. Do not dismiss on hear-say. Chris Jarvis18HRMNatural Justice“What am I being accused of”Right to be heard, put my side of the case, query evidence and have own evidence considered even for gross misconduct.Confront my accuser? Witness statements?R

27、ight to representation. Where practicable. Who?Instant vs. summary dismissal (field court)take account of employees information before decidingavoid hasty conclusions e.g. assumptions about prior disciplinary warnings, say, poor time-keepingAppeals? Chris Jarvis19HRMCompany Policy Framework - 1Publi

28、shed, common knowledge vs. verbal e.g. What is employee theft?Dos vs. Donts? (Positive/negative culture & values focus on contract performance)MINOR breach (corrective feedback)general irritations & tolerancesweak-fit between duties/standards, performance/ behaviourcompanys values & cons

29、istent managerial expectations?implied from general, routine, common-sense behaviour?outside workplace? Denial of personal expression?MAJOR breach (forever undermines root of relationship)accumulated minor breaches - no improvement?trust relationship cannot be re-built criminal action? outside workp

30、lace? Chris Jarvis20HRMVerbal warning- notedWritten warning- maybe FinalDismissal- or otherCompany Policy Framework - 2Grievous breach - all stepsRecorded warnings + guidance on corrective actionWarning shelf-life Appeal? Via grievance procedure?Let the punishment fit crimeRepresentationWhich manage

31、rs involved at which stage?Correspondence & documentationInformal advice“a word in your ear”Formal stagesAppeal? External mediation?Internal grievance procedure Chris Jarvis21HRMFormalVerbal warningWritten warningDismissalSummary Dismissalwith/without noticesuspension - with or without pay?trans

32、fer, demotion, fine?Final written warningpull back from dismissalnext step dismissal? Appeal?Written warningformal, recorded during hearing. clear communication of consequencesVerbal warning - Issued formallyaway from workplace - confidentialAide memoir - time, reason, what was communicated, next st

33、ep, response.Feedback, staff appraisal? Normal supervision. Separationof roles (controller/friend?)Company Policy Framework - 3 Chris Jarvis22HRMReasonableness and sufficient reasonEmployer must act reasonably in all the circumstances in treating the reason as a sufficient and valid reasoncircumstan

34、ces incl. employer size & resourcesReasonableness depends onHOW the dismissal was carried out andif employer acted reasonably leading up to the decision e.g. warning, chance to improve, considered for alternative work (redundancy)?Qualifiers for small firms? Chris Jarvis23HRMFairness testsuffici

35、ent reason based on equity + substantial merits?multiple reasons - what are the principal ones!Burden of proof - neutral but balance weighs on employerET is NOT an arbitrator - cannot substitute own views of “reasonable” for the employersWhat would a reasonable employer have done in the circumstancesthe right course of action to adopt?A representative band of employersWas it fair?teacher slaps childs legs?refusal to work 3 months of Sundays? Chris Jarvis24HRMDisciplinary InterviewCallin