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Disciplinary Processes – It’s All in the Detail!

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A recent case illustrated why process and the associated details, can be critical when dealing with disciplinary issues. We look at the basics of a disciplinary process, the importance of following it and what could happen if you don’t!

The case of Miss M Crew and Miss J Mason v Three Milestone Education Ltd shines a spotlight on mistakes that can be made when managing a disciplinary and the importance of considering each case on its own merit. But first let’s take a look at the process.

Why Do You Need a Process for a Disciplinary?

Under the Employment Rights Act 1996, as part of the written statement of terms and conditions of employment, employers must provide employees with information on the disciplinary rules and the procedures for disciplinary decisions and appeals, or refer the employee to some other easily accessible document, such as a staff handbook, containing that information.

What About the Acas Code of Practice?

The Acas statutory Code of Practice on Disciplinary and Grievance Procedures provides recommendations for dealing with disciplinary situations at work. Businesses may have their own processes that are more suited to their needs but the Acas statutory code is the minimum an employer must follow. Failure to follow the Acas Code may be taken into account by tribunals in deciding if a dismissal is fair. Similarly an unreasonable failure to follow the Acas Code may lead a tribunal to adjust the amount of compensation payable to the employee.

Any Other Benefits?

There are other sound reasons for having a documented process set out:

  • Provides clarity – confirmation to staff what behaviour is expected behaviour as well as what may be deemed unacceptable or inappropriate.
  • Clear structure – a mechanism to look at and resolve concerns constructively and encourage improvement. Sanctions are not the only outcomes and the process can identify what improvement is required of an employee and outline what support might be available to facilitate the required level of improvement.
  • Consistency and fairness – to ensure rigour in its application across the business and to endeavour to be in the best position to successfully defend any unfair dismissal claim.

What Should a Disciplinary Process Include?

Acas advise six steps in a disciplinary process:

  1. Assessing the options – whether the matter can or should initially be dealt with informally; whether it sits within another process such as a capability process.
  2. Once the process is invoked, undertaking a fair procedure – this includes acting swiftly to inform the employee of the concerns and the process to be followed; at the same time being mindful of the employee’s health and wellbeing. Identifying who will conduct the disciplinary hearing and who might be needed to hear an appeal if one is raised.
  3. Carrying out an investigation to establish the facts of the case. The investigation should be done by someone other than the disciplinary hearing manager to maintain fairness in the process.
  4. Conducting the disciplinary hearing to review the evidence from the investigation – giving the employee adequate notice so they have time to prepare and allowing them to be accompanied by a work colleague or trade union representative. Providing them with the opportunity to ask questions of the investigation.
  5. Following a fair disciplinary procedure, the employer should decide on the best outcome based on: the investigation findings, what is fair and reasonable and what their workplace has done in any similar cases before. The decision should be communicated to the employee in writing and also detail their right to appeal the decision.
  6. Follow up after the hearing as appropriate – this may include talking to those staff who were aware of the issue, to ensure confidentiality is maintained; updating HR records.

Do I Have to Follow All the Steps?

Yes. The requirement is for a fair process that allows all parties the ability to participate and to have access to all of the evidence. Failing to undertake one of those steps such as a separate investigation could undermine the findings of the disciplinary and lead to a possible tribunal claim. But it is also important to consider each case on its own merit and recognise where adaptation to the process may be required.

The case found that an employer who refused to allow an employee’s mother to attend as their companion, was a failure to make a reasonable adjustment. The tribunal found there were extenuating circumstances due to the employee’s disability and the requirement for additional support and that rejecting the request, created an intimidating environment.

The same case also highlighted the importance of independence in investigations. The case involved two employees and as a consequence two hearings and investigations. The employer decided to swap the roles of disciplinary hearing manager and investigation officer between the two employee hearings. The tribunal found that there were “chances of contamination in the investigation between the decision maker and investigator of both cases..” and that the approach taken ” was “outside the band of reasonable responses”.

What Are the Repercussions for Not Following the Process?

  • Risk of claims for unfair dismissal- inadequate procedures or failing to adhere to published processes could mean consideration is not given to specifics of a matter or the process is incomplete ahead of any disciplinary outcomes, resulting in higher risk of a claim being made.
  • Costs of defending a claim – outside of the possible awards that could be made, there are legal costs as well as the costs of management time to consider.
  • Reputational damage – externally to your employer brand which could impact negatively on relations with suppliers, customers and deter future employees. Similarly existing staff want to be reassured that that an organisation follows its own rules and won’t attempt to ‘fast track’ a process.

Employers can avoid these pitfalls by having documented disciplinary processes which are clearly communicated and accessible to all; ensure the processes are adhered to; and provide training to those hearing disciplinaries as well as those investigating them. Disciplinaries will be an inevitable part of the workplace environment, but employers who put these measures in place can reduce potential challenges and minimise risks of future claims.

For specialist HR support with any of these issues, please contact Sue Meehan Boyes in our team on 07384 468797.

Is Hybrid Working, Working for You?

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It’s hard to remember a time before hybrid working. But as its usage has increased, so have some challenges. In this article we look at those challenges and consider how you can manage them within your own business.

The Current Picture in the UK


Recent data from the London Underground suggests that office attendance in the key London business districts has levelled off since November 2022. A Centre for Cities report stated that a hybrid working pattern is now most common in the capital, with the average office worker attending in person two days per week with three days worked remotely.

The report raises interesting questions regarding the loss of opportunities to collaborate in person, suggesting that the established economic benefits of ‘agglomeration’ which have been evidenced over the last century, are now on the decline. Although, given technological advances to accommodate remote collaboration in recent years, perhaps the impact is more nuanced than is being suggested.

Being co located with colleagues provides valuable opportunities for collaboration, learning and social interaction. But the pandemic has also demonstrated the value of remote working in fostering employee well-being, and work-life balance, without compromising on productivity.

Many employers continue to offer hybrid or remote-only working opportunities to attract and retain the best talent in a competitive recruitment landscape. Other academic research has evidenced the benefits of remote working to the wellbeing of employees, with the recent 4 day week study being a resounding success with 92% of those participating in the trial adopting the working pattern on an ongoing basis. Many employers who participated in the 4 day week study also offered hybrid or remote-only working opportunities and actually found a distinct increase in productivity.

Is Hybrid Working Right for Your Organisation?


It’s clear that the demand for flexible working is here to stay and that it can work. But it is equally important to recognize that there is no ‘one size fits all’ and organisations should review their own challenges before attempting to adopt any drastic changes to working practices.

As an employer, you might want to consider how you are measuring and monitoring the effectiveness of your current working practices.

  • This could include metrics such as financial data, productivity data, sickness absence data, recruitment and retention metrics, employee wellbeing data etc.
  • Seeking feedback from your employees informally on how it’s working for them through employee forums, surveys or via management.
  • Reviewing your flexible working policy and how you promote this within your organisation.

Peter Cheese, Chief Executive of the CIPD, said in response to the four-day-week trial “[the pilot] has shown the potential organisations have to rewrite the rules on working norms across different roles and sectors… [to] create better balance of working lives for their people while maintaining business output and outcomes”.

Keeping Connected While Hybrid Working


Being truly connected to your team is not simply about being online. The real puzzle is how we can maintain the scope for collaboration when working remotely. A few things you can consider:

  • Train your managers on how to engage, motivate and manage a remote team
    Remember, the skillset required to manage a dispersed team is not the same as managing a face to face team.
  • Create a working environment where innovation is encouraged and nurtured
    Depending on how you work, it may help to schedule some team thinking time. This could be during regular online meetings and/or during face to face development sessions.
  • Make face to face time count
    If you are arranging face to face events that will require investment and travel, make them worthwhile! Seek input from the team on the design of the day and how you will measure its success.
  • Maximise the use of technology but don’t forget the importance of human connection!
    One of the key criticisms of hybrid working is the lack of opportunity for human connection and socialising. You can weave in opportunities for social connection to your face to face events but we would also recommend making space for this remotely too.
  • Review and evolve
    Schedule regular opportunities to revisit the way things are done. It should not be set in stone and the way you work should evolve with the needs of the organisation and the team.

Looking Ahead

The evidence certainly suggests that hybrid working patterns will remain an established way of working for the foreseeable, something that businesses need to consider when they are looking to the future and the development of their recruitment strategies. In a recent survey by Deloitte, 77% of Gen Z and 71% of millennials would consider looking for a new job if their employer asked them to go to their workplace full-time. Likewise existing staff have appreciated the benefits a more flexible approach can bring – whether that’s in reduced travel time, better balance of caring responsibilities. Engaging with staff and giving consideration as to what could really work within the workplace, will help businesses be in the best position to both attract new talent and retain and motivate current employees.

 For a discussion on how you can make hybrid working or other forms of flexible working work in your organisation or the training we can offer, contact Kathryn Chidzey-Jones  in our team on 07881 092524.

Long Term Sickness Reaches Record High

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Suicide – What Can Employers Do to Ensure Vulnerable Employees Receive Support in a Time of Crisis?

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Suicide is a significant public health concern; it is an emotive and complex subject from both a personal and work place perspective. This article considers what support organisations can put in place to help employees at risk of suicide in times of crisis.

The Business Case for Action

This topic has been prevalent in the media in recent months, most recently following the death of a Head Teacher pending publication of their School’s Ofsted Report. Academics in the British Medical Journal have subsequently recommended that every work-related suicide should be investigated by the Health and Safety Executive. On 12 June 2023, Ofsted announced that school inspections are to change in England as a consequence of this case, after the Head Teacher’s Union claimed that the system was fundamentally flawed.

Statistics for work related suicides are not reported on, however suicide rates have returned to pre-pandemic levels, following a decrease in 2020. Additionally as we reported last month, the HSE has seen an increase in work-related ill health cases 2021-2022, with one of the primary causes of ill health being work-related stress. Against a backdrop of financial worries and job insecurity, these figures suggest there is a very real context for employers to be concerned.

How Can Employers Support?

It is important to note that suicide is not inevitable. Most people suffering with suicidal thoughts are ambivalent about dying but may be unable to imagine other potential solutions. With the right support, people can find their way through a suicidal crisis and recover. Suicidal feelings are necessarily related to the presence of a mental illness. These feelings are far more common that one may think and usually occur as a result of a multi-factorial process.

So what can managers do in practical terms?

Stay Connected

It is critical that managers connect regularly with their teams, and use those opportunities to ask each individual how they’re feeling. This is especially important if they can see changes in the person’s behaviour, such as them becoming quieter and more withdrawn, defensive, tearful, forgetful or error prone. Being attuned to possible risk factors for employees – stressful life events, such as a bereavement, a relationship break-up or divorce, getting into debt or being made redundant, can all put people at risk.

Those who feel lonely and isolated are also at heightened risk because they often lack the friendship, family and other support networks needed to open up about their feelings and get reassurance that even though they feel like this now, it won’t always be the case. However, managers need to recognise that many people feeling like this, will hide their feelings.

Create opportunities for the team to reconnect with each other. Many of the opportunities people used to have to connect with each other through work – in the coffee area, at lunch or while passing people in the corridor – have gone. Think about how to re-engineer those social interactions for people to chat and socialise with each other, the way they might have done during a coffee break or at lunchtime in the physical workplace. You could also consider arranging an informal gathering, even if people are no longer based in the office full time.

Engage

As an employer, managers have a duty of care to understand if anyone who seems particularly low in mood or overwhelmed is at risk, as such if a manager is concerned about an individual it’s okay to sensitively ask: “Are you feeling suicidal or have you had feelings of hurting yourself?” Far from putting the idea to do this into someone’s head, asking this question is essential to understanding if the person is at risk, because if they say yes, the manager can then take steps to direct them towards support. The Charity Mind advises that ‘asking direct questions can encourage employees to be honest about how they are feeling. Many people feel relieved and less isolated when they are asked’.

Signposting Support

Company wellbeing policies that tackle all areas of an employee’s health can provide essential information and guidance for both managers and employees. As well as signposting to external resources, they can provide much-needed clarity by outline what internal support is available and what processes are in place for individuals to access that support.

Internal support could include access to counsellors and therapy services delivered through a company’s employee assistance programme (EAP). External support might involve signposting to charity helplines or to the individual’s GP. Managers could offer to contact support services on behalf of the employee, as often it’s easier for someone to accept help than to proactively seek this.

Mind recommend putting a Support Plan in place for at risk employees. This is a document that sets out how someone would like to be supported and what they can do to help themselves in in a particular situation. It is also a useful document to keep important information and useful contacts in the same place. If, as an employer, you don’t feel able to support all ideas from the employee, it enables managers to research other resources or support organisations that may be able to help.

Whilst employees may be accessing external services, managers should still continue to check in with them to see if this is actually helping and if there’s anything else they can do to help. Other practical help might include flexing the individual’s hours to help them deal with the underlying issue that led to their depression or suicidal feelings in the first place. For example, by shifting their hours so they can meet their children a few days a week from school after a relationship breakdown. Time off within working hours could also be offered to enable an employee to meet with a counsellor.

Line Manager Training

Given the pivotal role line managers can play in providing the right support to employees, it is essential that they are properly supported themselves to enable them to fulfil this role successfully. The provision of appropriate, relevant training will be critical to this success as well as having access to internal resources and support for further guidance. It will be equally important for managers to understand that their role is in helping employees access the right support, but not to feel that are personally responsible for advising or counselling that individual.

Awareness

Employers should seek to increase awareness of all areas relating to employee health and wellbeing and can use key focus days, such as World Suicide Prevention Day on 10 September 2023 to let employees know that if they are struggling, there is support in place to help them feel better.

Further Support

www.mind.org has a useful article to support someone who is feeling suicidal. They also share useful contacts for employers, friends or family to use in this situation.

If you would like more help with understanding what support you can provide to your employees in this situation, or for any other HR concerns, please contact Helen Couchman in our team on 07799 901 669.

Robust Line Management Versus Bullying – How Far Is Too Far?

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We review this age old debate in light of the recent media interest in the Dominic Raab investigation and findings.

As HR professionals, we understand that maintaining a positive workplace culture is essential for the success of any organisation. Unfortunately, sometimes the line between strong management and bullying can become blurred. What one person perceives as a reasonable management technique may be seen as bullying by another, leading to conflict and damaging the overall work environment. Recent media interest in the actions of high-profile figures, such as Dominic Raab, has brought this issue to the forefront of public consciousness.

It’s essential to recognise that bullying is a serious problem which should never be tolerated in the workplace. The negative impact it has on employees, both personally and professionally, can be significant and long-lasting. Workplace bullying can lead to low morale, decreased productivity, increased absenteeism and high staff turnover. It can also result in mental health issues, including anxiety and depression, which can have a devastating impact on individuals and their families.

What Is Effective Line Management?

There is a distinction between bullying and legitimate management techniques. Effective line management involves providing guidance, feedback and direction to employees to help them perform at their best. This can sometimes require tough conversations or performance improvement plans, which may be uncomfortable for the employee in question. It is crucial to ensure that these conversations are conducted with sensitivity and respect. Managers must listen to their employees, take their concerns seriously, and act to resolve any issues in a constructive manner.

Perception Makes this More Tricky

It’s important to recognise that what one person perceives as bullying may not be the intention of the manager in question. Perception is subjective – different people have different sensitivities. What one person perceives as a motivating challenge, another may see as an unreasonable demand. Also, workplace environments differ vastly, with significant differences in everyday language and the way colleagues interact. Staff might whisper in an office, whereas staff might shout across a building site to be heard. Cultures of banter can also add a layer of complexity to the way some employees might perceive bullying from a line manager, which can make this harder still to navigate. This is why it is essential to foster an open and transparent work culture, where employees feel comfortable expressing their concerns and managers can receive feedback on their management techniques.

Boundaries

The recent media interest in the actions of Dominic Raab highlights the importance of clear boundaries in the workplace. Mr Raab was accused of bullying and mistreatment of staff, leading to calls for greater accountability and transparency. It’s highlighted the need for a robust approach to preventing bullying in the workplace. Regardless of whether his behaviour met the legal definition of bullying, it is clear that his conduct caused harm to the individuals involved, and damaged his employer’s reputation. This serves as a reminder that even well-intentioned managers can sometimes cross the line, so it is important for organisations to have clear policies and guidelines in place to prevent and address workplace bullying.

So, How Far Is Too Far When it Comes to Line Management?

There is no single answer to this question – the difference between tough management and bullying can be difficult to define. As we have seen, different workplaces and individuals have different standards and expectations. It depends of the individual employee’s personality and work style, the culture of the organisation and the nature of the job. However, there are some general guidelines that can help mangers avoid crossing the line into bullying territory. Managers should:

  • Focus on specific behaviours or performance issues, rather than making personal attacks or criticism. Be clear about expectations and provide constructive feedback on how to improve. Be willing to listen to employees’ concerns and ideas and be open to feedback themselves.
  • Be respectful and professional in their interactions with employees. Avoid aggressive or threatening language. Never engage in physical or verbal abuse. If a manager is feeling angry or frustrated, they should step away and calm down before speaking with the employee.
  • Be aware of the power dynamic in their relationship with employees. Don’t use their position of authority to intimidate or control others. Always strive to create a collaborative and supportive work environment.

It’s essential to ensure that all employees feel respected and valued. If an employee feels uncomfortable or upset by the behaviour of their line manager, it is essential to address the issue immediately. HR professionals need to be able to recognise the signs of bullying and intervene effectively. This can involve informal discussions, mediation, or formal investigations, depending on the severity of the situation.

If you would like any additional help or training with the most effective approach to line management, please contact Jo Bradbury in our team on 07570 372118.

Are You Up to Speed with the Changes to Statutory Payments for Your Employees (Updated in April 2023)?

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This year’s statutory pay increases represent between a 9% and 10.1% increase from 22/23 as an effort to soften the blow of the rising costs of living on employees.

It’s the time of year that the Government updates statutory payments for employees. The updates cover a wide range of statutory rates of pay, from statutory sick pay to the national living wage for those aged over 23 years old.

What Has Changed?

From 1 April 2023 onwards:

  • National Living Wage for age 23 or over – £10.42 per hour
  • National Minimum Wage for age 21 to 22 – £10.18 per hour
  • National Minimum Wage for age 18 to 20 – £7.49 per hour
  • National Minimum Wage for under 18s – £5.28 per hour
  • National Minimum Wage for Apprentices (in their first year only) – £5.28 per hour


From 2 April 2023 onwards:

  • Statutory Maternity Pay and Maternity Allowance – £172.48 per week
  • Statutory Shared Parental Pay – £172.48 per week
  • Statutory Paternity Pay – £172.48 per week
  • Statutory Parental Bereavement Pay – £172.48 per week

From 6 April 2023 onwards:

  • Statutory Sick Pay – £109.40 per week

No Change

The minimum weekly earnings threshold has not changed, for eligibility for statutory sick pay or statutory maternity, paternity, adoption or shared parental pay, which remains at £123 per week. Actions for Employers

From an employer perspective, it’s important that you are aware of these increases to ensure that your policies and practice are up to date in order to remain compliant and maintain your employer brand. In particular, we would recommend for you to review how you manage increases for younger workers. For example, if the rate of pay for a 20 year old employee in your organisation is currently £8 per hour, this is in alignment with minimum wage for their age. However, once they reach their 21st birthday they will be entitled to be paid a minimum of £10.18 per hour. You will need to ensure that you have processes in place to monitor age increases and review pay accordingly to avoid inadvertently breaching the Regulations.

Additionally, we would suggest that you review the pay of all those absent due to sickness or parental leave to ensure their pay is increased in line with the April 2023 updates.

For a discussion on how NQHR can support you to audit your current pay policies and practices in line with the statutory increases contact Kathryn Chidzey-Jones, HR Consultant in our team on 07881 092524.

The ‘Ticket of Trust’ – The End of the Formal Employment Contract?

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Employees have a right to a written statement of particulars on or before their first day of employment. There is a very specific list of elements that this must contain, with ACAS providing clarity for employers on best practice.

How Flexible Can an Employment Contract Be?

While the key components of the written statement are non-negotiable, how they are presented is up to you as the employer. The employment contract is where most employers include these components and this provides one of the first insights into the culture of an organisation for a new employee. The employee will be seeking to understand the expectations they can have of you as their new employer and, equally, your expectations of them.

Traditionally, the employment contract has been an extremely formal document using terminology we would not use in a normal discussion at work. The text has been presented as black font on a white background, a format that can be difficult to digest for neurodiverse employees. Research has shown that for neurodiverse people, using a sepia or pastel coloured background with dark coloured text can help make documents easier to process.

Getting Creative

Some employers are starting to innovate, attempting to mirror their creative approaches to business within their employment contracts. Tony’s Chocolonely, a values driven chocolate company based in the Netherlands, has introduced what they call their ‘ticket of trust’ in place of a traditional contract of employment. While the specific provisions of the contract are not tailored to suit our legal system, the infographic, minimalist style gives an intriguing introduction to the organisation while still covering off the key components required of a written statement. One particular talking point, is the offer of unlimited annual leave.

While your organisation might not be quite ready for an infographic style or unlimited annual leave, it is important to ensure your contract is aligned to your current culture and written and presented in an accessible way. Don’t forget that if you wish to make changes to the terms and conditions of employment for existing employees, a consultation is likely to be required.

For a discussion on how NQHR can support you reinvigorate your current employment contract for new employees, or on consulting with your present employees to agree changes, contact Kathryn Chidzey-Jones, HR Consultant in our team on 07881 092524.