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GMB Birmingham & West Midlands Region

Discipline & Dismissal

1.   Can I Be Represented In A Disciplinary or Grievance Hearing?
 
Workers have the right to be accompanied at disciplinary and grievance hearings and appeals, even if their employer does not recognise their Union.
 
This right is available to all workers (including agency and home workers) regardless of the number working for their employer.
 
You can choose who to have as your companion, providing the person is either:
 
Ø       a union lay official certified as experienced or trained in representing workers;
Ø       a trade union officer; or
Ø       another of the employer’s workers.
 
The right applies to:
·       any disciplinary hearing which could result in a formal warning, or in the employer taking some other action e.g. dismissal, suspension.
·       appeal hearings
·       grievance hearings (i.e. a hearing which concerns the performance of an employer’s duty towards a worker).
 
The request to be accompanied must be “reasonable”, so do not leave it until the last minute.  It is best, though not obligatory, to put it in writing.
 
The employer must allow your companion to address the hearing to:
 
Ø       put your case,
Ø       sum up that case and
Ø       respond on your behalf to any view expressed at the hearing. 
 
Your companion can also confer with you during the hearing.  S/he will therefore normally be able to address the hearing both at the beginning and end of the proceedings and will also have the opportunity to respond to views expressed. However, the employer is not required to permit the companion to:
 
Ø         answer questions on your behalf ,
Ø         address the hearing if you indicate that you do not want the companion to do so, or
Ø         use the powers in a way that prevents the employer from explaining his case or any other person making his contribution.
 
If your companion is not available, you can ask for the hearing to be postponed.  You can propose an alternative date which must be reasonable and must fall within five working days (excluding Saturday, Sunday, Christmas Day, Good Friday and bank holidays).  So a hearing set for Monday can be postponed up to, but not beyond the following Monday.
 
A companion is allowed reasonable paid time off, including conferring with the worker before and after the hearing
 
If your employer refuses to allow you to be accompanied, or to postpone a hearing, you can complain to an Employment Tribunal, which can award up to two weeks’ pay.  A dismissal in these circumstances may well be unfair.
 
 Workers and their representatives are protected from dismissal or action short of dismissal for exercising or trying to exercise the right to be accompanied. Where a worker attends a hearing as the companion of another worker, s/he is protected against detriment and dismissal not only in respect of the act of accompanying the worker but also for addressing or seeking to address the hearing. 
 
2.    Am I Entitled To Receive Warnings Before I am Dismissed?
 
·       There is no general right to a warning before you are dismissed.  That is why unions negotiate disciplinary procedures, to protect workers.
 
·       If you qualify for protection against unfair dismissal, then it will usually be unfair to dismiss you without warning (see 34. How Long Must I Work Before I Can Complain of Unfair Dismissal?).  Fair dismissal requires proper procedures, and it is not proper to dismiss workers without warning. 
 
·     The main exception is where you are dismissed for gross misconduct - here you can be fired for a first offence, and without any previous warning, provided there is a proper investigation and a fair hearing.
 
·       Since 1 October 2004 every employer has to follow a minimum statutory “dismissal and disciplinary procedure” (DDP). All employers must now provide employees with details of their disciplinary and grievance procedures.
 
·       The procedures only apply to employees and not workers, so if you are an agency worker the procedures will not apply to you. The employer must use the procedure when s/he is considering:
 
Ø       dismissal – the procedure applies not just to conduct or capability dismissals but whenever dismissal is contemplated. So it must be used for redundancy, compulsory retirement and when a fixed term contract expires; or
Ø       taking relevant disciplinary action – this means action short of dismissal which is based on your conduct or capability.  However this does not include suspension on full pay or oral or written warnings so, for example, your employer need not follow the statutory DDP before issuing you with a final warning.
 
·       Your employer must:
Ø       give you a written statement of the alleged misconduct, poor performance etc., and
Ø       hold a meeting with you to discuss the issue, and
Ø       inform you of any decision and of your right to appeal.
 
·       You have the right to be accompanied by a trade union official or a fellow worker at both the original meeting and any appeal (see 30. Can I be Represented In a Disciplinary Hearing?). 
 
·       The procedure is modified if you are dismissed without notice or pay in lieu for gross misconduct, Here, the employer must give you a written statement of the alleged misconduct leading to your dismissal, and provide a right of appeal. You have the right to be accompanied by a trade union official or fellow worker at the appeal meeting.
 
·       If your employer dismisses you without following these minimum statutory procedures, you may be able to bring a claim for unfair dismissal. If so, the dismissal will be automatically unfair and the tribunal can award compensation of four weeks’ pay. (Maximum of £475 a week) Any claim must be made within 3 months of the dismissal.
 
·      Even if your employer has followed the statutory DDP, an employment tribunal may still find that your dismissal has been unfair, for example dismissal may not have been reasonable in all the circumstances. It is important that you attend any meetings arranged by your employer under the DDP and appeal is you are not happy with the result. If either you or your employer has failed to complete the DDP the amount of compensation awarded can be increased or decreased depending on who is responsible for the failure.
 
·      The dismissal and disciplinary procedures do not apply in a constructive dismissal situation (i.e. where you resign because your employer has fundamentally breached your contract). In such a case you should follow the statutory grievance procedure and lodge a grievance before bringing a claim.

3.    Can I Be Sacked For Refusing To Carry Out An Instruction?
 
·       Every unfair dismissal case turns on its particular facts - no firm advice can be given without going looking at the details.  However, as a general rule, you risk losing your job if you refuse to carry out a legitimate and reasonable instruction given to you by your employer.  So a tribunal would first of all look at the instruction. 
 
·       The dismissal would probably be unfair if the instruction was that you break the law, e.g. drive faster than the speed limit, or enter false accounting records.  It is unlawful for your employer to instruct you to discriminate against someone, for example because of their race, sex, disability, sexual orientation or religion or belief.  If you are sacked for refusing to carry out an instruction to discriminate, an employment tribunal would probably find this an unfair dismissal.
 
·       It might also be unfair if the instruction, although legal, was beyond your contract and clearly unreasonable.
 
·       If the instruction is lawful and reasonable, but of minor importance and the refusal was your first offence, the tribunal might decide your refusal was not gross misconduct.  However if the instruction is repeated but you still refuse, that could well result in a fair dismissal.
 
·       Tribunals will also take into account, where it is relevant, whether your colleagues were prepared to obey the order.
 
·       You can refuse to work in conditions of serious and imminent danger, provided you cannot find another way of averting the risk.

4.    How Much Notice Must Be Given To End My Employment?
 
·       Your contract of employment will usually state the period of notice which both you and your employer need to give to terminate the contract.
 
·       Your employer must, within two months of the start of your employment, give you written details of relevant notice periods.
 
·       If your contract is for a fixed period it will continue until the fixed period expires.
 
·       If your contract is not for a fixed period and the notice period has not been expressly agreed, there is an implied term that your contract may be terminated either way on reasonable notice.  Factors to be considered in deciding what is reasonable notice are seniority, remuneration, age, length of service and what is usual in your particular trade.
 
·       As a very rough guide a period of one month may be appropriate for a manual worker and three months for a senior skilled worker.
 
·       Your employer can pay you instead of letting you work your notice period (known as “payment in lieu”), but only if your contract specifically allows for this.
 
Minimum Notice
 
·       Whatever your arrangements (if any) with your employer regarding notice periods, the notice actually given must not be less than the statutory minimum period of notice. 
 
·       The notice in your contract of employment must be given if that is a longer period.
 
·       The length of the statutory minimum notice depends on the amount of continuous employment you have had with your employer:
 
     You are entitled to the following minimum notice:
 
Ø       If you have been continuously employed for less than two years (but more than one month) = One week.
Ø       If you have been continuously employed for two years or more = One week for every complete year worked, up to a maximum of twelve weeks.
 
      If you are resigning and have been employed for at least one month, you must give your employer one week’s notice.
 
·       You cannot contract out of your right to a statutory minimum period of notice.  However you may waive your right to notice or receive pay in lieu of notice.
 
·       Your employer can dismiss you without notice, if you have committed an act of gross misconduct. However the dismissal must still be fair and your employer must, as a minimum, follow the statutory dismissal and disciplinary procedure (see 31. Am I Entitled to Receive Warnings Before I am Dismissed?).
 
5.   How Long Must I Work Before I Can Complain Of Unfair Dismissal?
 
·       Before you can complain to an Employment Tribunal that you have been unfairly dismissal, the same employer must have continuously employed you for at least two continuous year.
 
·       Special rules govern what is “continuous employment”.  Service is counted in weeks.  Statutory maternity, paternity, adoption, and parental leave are included. Periods of absence due to illness or injury, or due to lay-off, are also included.  If you finish one job and are re-employed by the same employer the following week, you preserve continuity.
 
·       Sometimes you can include periods of employment with another employer, e.g. if you move from a parent company to a subsidiary (or vice versa) without interruption; or there is a transfer of an undertaking, or a change in the members of the partnership which employees you.  [You may need specialist advice to work out your period of continuous employment.]
 
·       You do not need one year’s service at all if you were dismissed because:

Ø       you were a union member or joined in your union’s activities

Ø       you “asserted a statutory right”, e.g. complained that you had not be given a pay slip, or of an unlawful deduction from pay, or not getting the national minimum wage

Ø       your dismissal related to health and safety, e.g. you were dismissed for your work as a safety representative, or because you took appropriate steps to protect yourself and others from a serious and imminent danger

Ø       you were pregnant, or for a reason related to pregnancy/maternity, parental leave or dependant leave care,

Ø       of your work as a pension scheme trustee

Ø       of your being or seeking election as an employee representative for consultation with your employer on redundancies or transfers of undertakings

Ø       you refused to sign an opt out from the 48 hour maximum working week, or made a claim under the Working Time Regulations

Ø       you “blew the whistle” on malpractice by making a qualifying disclosure to a responsible person under the (complex) Public Interest (Disclosure) Act.

Ø       you are a shop worker or betting worker who refused Sunday work

Ø       you supported a union’s application to the Central Arbitration Committee for  recognition

Ø       you asked to be accompanied to a disciplinary or grievance hearing, or accompanied a worker to a hearing

Ø       you took “protected” i.e. official industrial action

Ø       you claimed adoption, parental, or paternity rights, or requested flexible working

Ø       you claimed the right to equal treatment as a part-time employee with a full-time employee

Ø       you claimed the right to equal treatment as a fixed-term employee with a permanent employee

Ø       you claimed working tax credit or disabled persons tax credit

Ø       you were involved in the work of a European Works Council

 
·       If you are dismissed because of your race, gender, disability, religion/belief, or sexual orientation, you can bring a discrimination complaint to an Employment Tribunal regardless of your length of continuous service.
 
GMB IS PRESSING FOR A CHANGE IN THE LAW SO THAT ALL WORKERS HAVE PROTECTION FROM UNFAIR DISMISSAL FROM DAY ONE OF THEIR EMPLOYMENT

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