Disciplinary Process

Testimonials
Richard has worked on some complex cases. I can honestly say that his eagerness to succeed is matched with his willingness to listen and his calm yet consistent approach to confront issues head-on. And above all else, unlike solicitors we have dealt with before, he will go to vast lengths to understand each case before making any assertion. Without hesitation I recommend GD People. Peter Hetherington (Operations Director 1^st Care Ltd, Midlands) We needed help to guide us though our redundancy process and clearly the whole matter had to be handled sensitively. On recommendation, we chose GD People to help co-ordinate and communicate this to our workforce and they did a sterling job for us. We would have no hesitation in recommending their services based upon our own experience to-date. Darren Timson, Landcare Operations Director, Stockport.

Testimonials

Richard has worked on some complex cases. I can honestly say that his eagerness to succeed is matched with his willingness to listen and his calm yet consistent approach to confront issues head-on. And above all else, unlike solicitors we have dealt with before, he will go to vast lengths to understand each case before making any assertion. Without hesitation I recommend GD People.

Peter Hetherington (Operations Director 1^st Care Ltd, Midlands)

We needed help to guide us though our redundancy process and clearly the whole matter had to be handled sensitively. On recommendation, we chose GD People to help co-ordinate and communicate this to our workforce and they did a sterling job for us. We would have no hesitation in recommending their services based upon our own experience to-date.

Darren Timson, Landcare Operations Director, Stockport.

Disciplinary Process

Taking the decision to dismiss an employee is not easy. Our society recognises each person's right to work and just how important a job can be to the individual. As a result the law provides considerable protection to employees, and rightly so.

The difficulty for employers is that they have a business to run and at times they are faced with problematic employees. How to deal with such employees without transgressing employment legislation can be both difficult and daunting.

GDPeople's approach is to make use of the legislation in place and make it work for the employer. The law, both legislative and as interpreted by case-law, gives considerable guidance on just how to manage disciplinary procedures. The ACAS code is also now a vital guide. Using this guidance effectively can minimise the risk of employer's facing employment tribunal claims. As our expertise and focus is on the disciplinary process, we are able to provide reliable advice on how a procedure should work, and what the current view of the tribunal service is. For more on this topic see our Case Law Update Page. Our involvement will also introduce a degree of independence and objectivity which can defeat the suggestion that a decision is biased or self serving.

By way of example the case of British Home Stores Ltd v Burchell [1978] IRLR 379 EAT, provides guidance for when an employer may be considering dismissing an employee because it suspects he or she is guilty of misconduct, a situation not uncommon to employers. When a tribunal comes to judge the fairness of such a decision it must be satisfied that the employer had a reasonable suspicion before taking that decision. To this end the EAT in this case offered 3 guidelines:

The employer has to establish the fact of its belief in the employee's guilt:
The employer needs to show that in its mind it had a reasonable ground upon which to sustain that belief &;
At the time the employer formed that belief, it must have carried out as much investigation into the matter as was reasonable in the circumstances.

It is clear therefore that a tribunal will require a thorough investigation, so that it can be satisfied the employer had proper facts to reasonably inform and justify its decision. GDPeople use guidelines such as these to help insulate the employer and as important, be fair to the employee concerned.

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Case Law Update

Morgan v The Welsh Rugby Union

This is a useful case for reviewing some of the issues you need to consider when engaging on a redundancy procedure in its various forms.

In this particular case, the Claimant and a colleague were made redundant and their roles were replaced by one amalgamated wider role. Both men were interviewed for the new role but despite the fact that the Claimant met the new job description and the colleague did not, the colleague was given the job.

The Claimant's argument was based on the case of Williams v Compair Maxam [1982] IRLR 83. Williams sets out principles of good industrial relations to be observed in redundancy cases where the employees are represented by an independent union recognised by the employer. The EAT when outlining these principles was clear that they should not be taken as immutable or principals of law. Nonetheless, the principals have long been used as a benchmark for managing redundancy situations. They read as follow:

Conteh v Parking Partners Ltd

The Claimant was a black African female born in Sierra Leone. She was employed by the Respondent employer from 16 February 2009 as a customer car park attendant working in a car park at St George's Residential Development. The employer was a company which carried on business providing car parking facilities.

The marketing staff for St George's worked at the premises and were issued with tickets as they entered the car park. To leave the tickets had to be validated and on occasion the validation machine was broken. The Claimant had standing orders not to allow anyone to leave if their ticket was not validated. On the 14th March 2009, the Claimant exercised this standing order and refused to allow a member of the marketing staff to leave. The following day another member of the marketing staff came into the Claimant's office and was alleged to have said that "The fucking bloody machines are not working and who is paying your fucking bloody wages?", pointed to the sign on the wall and answered the question by saying, "St George's, you fucking stupid black African bitch". She went on insulting the Claimant, eventually letting herself out and slamming the door.

Lisboa v Realpubs

Over four decades the Coleherne Public House in Earls Court, London developed a national and international reputation as London's first 'gay pub'. Realpubs bought the premises. Realpubs own and operate gastropubs and their business model is to buy failing pubs and reposition them as gastropubs, offering good food and drink to all sections of the community.

In September 2008 when Realpubs acquired the Coleherne it was then in decline. The premises underwent refurbishment and were re-launched as the Pembroke Arms, opening to the public on 5 December 2008.

The Claimant in this case was an openly gay man. His working life has been spent in the hospitality industry. Between 2003 and late 2008 he worked as General Manager of a gastropub in Ealing. In late November 2008 he was interviewed by Realpubs' Operational Manager for a post in the Pembroke Arms. Following that interview the Claimant was offered and accepted a position as Assistant Manager at the Pembroke Arms. His employment commenced on 1 December 2008; it ended with his resignation on 11 January 2009.

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