Many employers issue Contracts of Employment or Statements of Terms and Conditions that include their Disciplinary Policy and Procedure. Whilst it's great that they've given consideration to this, it's not so great that they've made it "contractual".
Up until recently, in these circumstances, the company would be guilty of Breach of Contract, with potentially very serious consequences, if they failed to follow their Disciplinary Procedure. However, a recent tribunal, which went to appeal and further appeal, has determined that if a company fails to follow a disciplinary procedure that is contractual (ie contained in the contract of employment), they won't be guilty of Breach of Contract - just guilty of failing to follow their own disciplinary procedure.
This is good news as the penalty is potentially less severe but, in an unfair dismissal claim, they could still find themselves having to pay out over £70k! This could literally put a small company out of business - but a Tribunal wouldn't be interested in that... just the facts of the case before them.
So, yes of course you must have a Disciplinary Policy and Procedure. But keep it as a separate employment policy - non contractual. It will still need to be followed during disciplinary proceedings, but you will be free to amend the procedure in line with the needs of your business, just as long as it follows ACAS guidelines as a minimum.
ALWAYS follow your company's procedures - to the letter! You could be heavily penalised if you don't.
The qualifying period for unfair dismissal claims will change from 1 year to 2 years on 6th April 2012. Subject to approval by Parliament, it looks like this will not be retrospective.
Employees who commenced their employment on or before 5th April 2012 will still only need one year's service in order to be able to lodge a claim for unfair dismissal.
Employees who begin their employment on or after 6th April 2012 will need to have 2 years' service in order to qualify.
Effectively, this means that employers won't start to feel the benefit of this change until April 2013.
You might need to amend your Disciplinary, Capability and Redundancy policies and procedures to reflect this change. And if you use probationary periods wisely, you can hopefully avoid being caught up in unfair dismissal procedures at all.
Give us a call if you need help with any of your policies and procedures.
The maximum compensatory award for normal unfair dismissal will rise from £68,400 to £72,300 in February 2012.
Whilst this may seem excessive, such awards are rare. Last year the average award for unfair dismissal year was just under £9000. But this is still a lot of money - especially for small businesses - so it's best to avoid such claims through adopting and following clear policies and procedures.
If you need any help with this, please give us a call. Always happy to talk.
Whatever the rights and wrongs in the case of Sharon Shoesmith and Baby P, it is clear that correct disciplinary procedure wasn't followed and that Sharon Shoesmith should have had an opportunity to put her case to her employer in formal disciplinary proceedings.
Regardless of whether or not she messed up, Ed Balls did the wrong thing when he intervened and ordered her dismissal - without a fair hearing.
Employment law applies to all employers and employees and it is irresponsible and foolish to try and circumvent due and proper procedure.
If disciplinary procedure had followed its proper course, Sharon Shoesmith would likely have walked away with her tail between her legs, and not with the handsome payout that she will more than likely be awarded.