March 2010

Question:

I have been told by our Managing Director that we need a disciplinary policy, do we really need one? Also, I don’t know what it should contain and how long any warnings we may give should be for.

Answer:
The Employment Rights Act 1996 explains that in an employee’s statement of employment or written contract of employment if they have one, should explain where details of your disciplinary procedures are held. This is where your disciplinary policy comes in (it would be well worth you downloading a copy of the ACAS Code of Practice on Disciplinary and Grievance procedures for guidance as to what is expected). In summary your policy should explain the circumstances under which disciplinary action may be taken and list the type of incidents you consider unacceptable. Central to a fair and robust policy is a full investigation into any allegations, with a hearing following and a subsequent right of appeal against any sanctions. The ACAS Code of Practice now suggests two warnings, a first and a final one before dismissing. Usually a first warning is for six months and a final one for a year, but you can state longer. On occasions though the person’s misconduct may need to be treated as gross misconduct, which is summary dismissal without notice.

February 2010

Question

We have a situation at work as one of our managers is having an affair with another staff member who is a married woman. It has been brought to our attention by a colleague who doesn’t approve, but can we stop people having affairs at work?

Answer

Generally speaking it isn’t your position to take a moral stand on issues like this, but you can certainly take action if it is affecting work. For example if they are sneaking off together during working hours, if their work is suffering or if they are behaving improperly in the workplace. You should speak to them and point out the work problems and, if that fails to resolve the matter, take appropriate disciplinary action. You may feel it appropriate to have one or both of them transfer to other areas if that is possible. If you transfer just one of them, however, do not automatically go for the woman as this could be viewed as sex discrimination. Choose the one whom it is easier to redeploy and record your reasoning. You will have a greater problem if one of the parties is the line manager of the other. Most reasonable people would expect this to result in favouritism, albeit unconscious. If they persist in the relationship, you really would need to move one of them.

January 2010

Question

I have an employee who is working on a fixed term contract of 12 months but she has just told me she is pregnant and her contract will end halfway through her maternity leave. Is she entitled to return to work to complete her contract when she finishes her maternity leave?

Answer

Assuming that the work she was doing under the fixed term contract comes to an end and the contract doesn’t need to be renewed, then there is no reason why the contract should not expire at the original date despite the fact that your employee is on maternity leave. Your employee would have to be dismissed but the reason would not be related to her pregnancy or childbirth. She may still be entitled to maternity pay and you would need to look at the dates closely, but she wouldn’t have the right to return to complete the remaining term of her contract after finishing her maternity leave.

December 2009

Question

I have an employee who has been off sick now for three weeks and during this time we have been paying him Statutory Sick Pay. He has now written to tell me that he wants to resign. I am happy to accept his resignation but he seems to think I have to pay him full pay, not sick pay, for his notice, is this right?

Answer

On the face of it this sounds like something that can’t be right, but it may actually be true! It is always necessary to refer to employment law in cases like this and the legal part of my answer relates to Sections 87 and 88 of the Employment Rights Act 1996, which states that the employee has the right to normal pay during their statutory notice period, even if they are off sick. My advice though is that it is worth locating and checking their contract of employment. You should look at the notice you have asked them to give you. If you have asked them to give you more notice than the law requires, then the above provision does not apply.