Disciplinary and Grievance Procedures at the Regency Hotel

This report focuses on analyzing and evaluating the disciplinary and grievance procedures at the Regency Hotel (RH). The Regency Hotel (RH) is an independent hotel based in London. Its goal is to be the preferred hotel in South Kensington. It is privately owned and does not form part of any hotel chains. It employs 75 employees and has a relatively flat structure with one or two managers in each operation.

Until recently, (RH) has been under an autocratic leadership where the management team who told what to do and did not have the chance to question. The culture of the place included the use of foul language and condescending communication style. The turn over of staff is very low and the management team has been employed for a long period of time and has served various positions within the organization.

There is very little evidence of managers taking ownership of employee related issues in the past twenty two years. The senior management team believed that only the General Manager or the HR Manager had the right to discuss and take actions on employee related issues. Hence, involving the line managers in this process would lead to a transfer of power.

Two year ago, the General Manager was replaced due to retirement. This has lead to the HR Manager leaving . A new General Manager and HR Manager was employed to take over the operations of the company.

While there are a number of issues in the management style at RH, the disciplinary and grievance process has been identified as a major issue based on the employee relations cases that have taken place recently mainly:

The current disciplinary and grievance procedure and its relevance in comparison with the ACAS Code of Practice

Contractual terms

The reason why an organization needs to conduct disciplinaries

The involvement of managers

RH has a staff handbook that contains some outdated information. The previous HR Manager had very little knowledge of employment law and the implication in the workplace. Based on the issues around the disciplinary procedure and common practice on the work place, it may leave the company open to tribunal claims.

Therefore this project will be valuable in providing information about what the organization needs to focus on in term of disciplinary procedures while identifying the gaps and propose what needs to be done.

Analysis and critical review of the organisational policies

A disciplinary procedure is the means by which rules are observed and standards are maintained. The procedure should be used in order to help and encourage employees to improve rather than just as a way of imposing punishment.

On the 6th April 2009, the statutory dispute resolution Procedure (SDRP’s) were repealed in Great Britain and New Acas code of practice (no 1)on Disciplinary and Grievance procedures came into force.

In relations to the disciplinary and grievance procedures, the following issues have been identified:

The right to accompaniment

Suspension without pay

Disciplinary procedures does not apply to employees under one year service

Clear procedures throughout the disciplinary process

The role of line managers in the disciplinary and grievance process

“The statutory dismissal, disciplinary and grievance procedures, as set out in the Employment Act 2002, apply only to employees as defined in the 2002 Act and this term is used throughout sections 1 and 2 of the Code. However, it is good practice to allow all workers access to disciplinary and grievance procedures” (ACAS, 2009)

Failure to follow the statutory procedure as set out by the Code of practice may lead to a number of legal implications.

The right to be accompanied

RH sets out in its disciplinary procedure that during a disciplinary process, employee have the right to be accompanied by only a fellow employees. However, ACAS argues that employees have the right to be accompanied by a fellow worker, trade union representative or an official employed by Trade Union set out in section 3 of the Code. This is further outlined in Sec [2b] [3] ERA 1999. The decision by the company not allowing Trade Union (TU)can lead to the employee claiming unfair dismissal in an event of a dismissal if they feel that the investigation of the matter was not done appropriately and they were unable to defend themselves on the basis that they did not have the support of a TU representation. However, in itself, it is not enforceable in its own right to have Trade Union’s presence in the meeting. If the employee resigns on the basis of not being allowed to be accompanied by a TU representative, the Employment Appeal Tribunal (EAT) will look at whether the process was reasonable. If found unreasonable, it may raise the unfair dismissal award by 25 percent.

Before 6th April 2009, as long as the statutory minimum dismissal procedure was followed, a failure

RH needs to review and amend its current staff hand book whereby, the right to accompaniment needs to be reassessed.

Suspension without pay:

The disciplinary procedure at RH entails that in the event of a suspension for gross misconduct, the company reserves the right to suspend employees without pay. It is argued that all suspension should be made with pay. It is sometimes necessary to suspend an employee while an investigation is carried out into a disciplinary matter; this might be the case where the employee is suspected of gross misconduct, or where colleagues may feel at risk if the employee remains at work during an investigation.

Employers do not have to always go through the suspension route and may look at alternatives. If they do go ahead with the suspension, the employers should ensure that they carry it out in a fair and reasonable way, which means keeping it under review and making sure it is not a lengthy process while ensuring employees are kept informed throughout, and paying the employee in full unless there is contractual provision for unpaid suspension. In the case of RH, there is not detailed out in the employment contracts. This information is only found in the employee handbook which is issued when they attend company induction. One may argue that he/she had not been made aware of such conditions.

ACAS argues that it is best practice to suspend employees with pay. By not paying an employee for a period of time may result in the employee claiming an unlawful deduction of wages as he/she had not signed any documentation to allow such deductions Sec [13] ERA 1996. Also the employee may claim under Sec[70] ERA 1996 where an employee may present a complaint to an EAT that in convention of sec 67 her employer has failed to provide her with work as she was ready, willing and able to work.

However, it can be argued that a deduction from a worker’s wages made by his employer in consequence of any disciplinary proceedings if those proceedings were held by virtue of a statutory provision Sec [14] ERA 1996

Another issue with the unpaid suspension from work could result in an employee claiming constructive dismissal under the assumption that he/she has suffered a detriment such as a penalty due to the disciplinary before the conclusion of the process. The test can be applied to Four Seasons Healthcare Ltd v Maughan test :The case of a care home nurse suspended over an allegation of assault proves that employers must make sure they have contractual grounds to withhold pay

Dismissal of employees under one year service.

There are 6 potentially fair reasons to dismiss staff based on the Conduct, Capability, Retirement, redundancy, illegality and some other substantial reason.

If the correct procedures are not followed could potentially face a claim for breach of contract, unfair dismissal or wrongful dismissal. Employers may be tempted in trying to get rid of employee who have under one year service as it is believed that they are not able to claim unfair dismissal. There should be at least one formal meeting , they may choose to make a complaint for breach of statutory rights.

It is currently detailed out in the employment contract that the disciplinary procedures will not apply to employees under one years service. Under Sec [94] ERA 1996, an employee has the right not to be unfairly dismissed . While an employee, does not have the right to claim unfair dismissal under one year service, they are however entitled to claim automatic unfair dismissal if they have raised a statutory right for example minimum wages claim, statutory maternity or paternity right, Statutory sick pay, sex and race discriminations. The employee can also claim wrongful dismissal under breach of contract. A test can be applied to Raspin v United New Shops LTD (1999), IRLR 9, EAT

The role of line managers and the clarity of procedures

Currently at RH, the disciplinary procedure and grievance procedure are not being followed despite it being quite an old and outdated policy. Managers have the tendency to address basic issues and devolve major issues to the HR Manager. While it is important to seek advise from the HR department, it is crucial for the Line Manager to take an integral part in managing employees behaviour/conduct and performance at work as they are the one who are more in touch with the issues faced within their departments. Managers can find that disciplining employees can be an embarrassing aspect of their role which causes them to avoid their responsibility (Rees &Porter, 2005). Inconsistencies in treatment, especially within a department, can create considerable resentment which confirms that managers may have a biased attitude towards disciplinaries which could cause adverse reactions of employees relations issues to be perceived as unfair by disgruntled employees towards their manager.

A disciplinary hearing can be a difficult experience for both managers and employees. Therefore, it is important to consider what skills the managers have in managing disciplinary issues including conduct and performance. It is interesting to consider the Brown v Hall Advertising Limited [1978] IRLR 246, EAT where The Employment Appeal Tribunal has held that the need for formal warnings of poor performance is less important where the parties have a close working relationship and are in regular contact.

There is no clear procedure under the grievance policy whereby if a grievance is raised during an ongoing disciplinary process, the disciplinary meeting needs to be temporarily suspended in order to deal with the grievance under code 44 of the ACAS code of practice 1.

Employees should have written invitation to disciplinary meeting. Employment tribunals have often applied a strict interpretation of the requirement in the SDRPS that the disciplinary issues must be given in writing to an employees. The new code advises that the employee should notified in written including enough information to help them prepare and argue their case, details of where the meeting will take place and advise on their right to be accompanied as failure to do so will be in breach of the new code.

By analyzing the policy and procedure of RH, it can be seen that there is not much emphasis placed on the importance of managing disciplinaries and grievance correctly. The main question is, how effective do we believe a disciplinary process can be? The main way to judge its effectiveness is to see whether the behavior by the workplace is appropriate. If not, it is then necessary to ask if disciplinary problems are a cause of inappropriate behavior.

Due to the size of the organisation, it is important to involve all the relevant line managers in the disciplinary process as this will help removing HR from being the one who chairs the disciplinary meeting thus enabling HR being impartial in the process. HR’s role should be an advisory one rather than being the one who implements disciplinary sanctions. While adopting this process, it would help up skilling the managers and empowering them their roles

Conclusion:

This report indicates that there are several issues in the current management of the disciplinary and grievance procedure. Firstly, the policy is not clearly detailed out to all employees. It is written in the employment handbook which has not been updated in order to reflect the new changes in legislation. Employees have the right to be made aware of all the company’s policy and procedure as this will be relevant in all aspects of their work life. Also, while providing staff handbooks, staff member have to sign in order to confirm receipt of the handbook and also that they understand its content. At that stage, the employees do not have the time to read it and just sign for it. Therefore signing for the handbook does not mean that the staff member fully understand its contents.

Based on the ACAS code of practice, it is important for RH to ensure that staff members are allowed representation by Trade Union representative or an official employed by Trade Union set out in section 3 of the Code as this allow employees to have a freedom of choice in their companion and feel safe that they have had a fair trial.

Although, the law allows employers to dismiss employees under one year service without going through the disciplinary procedures as they are lass likely able to claim unfair dismissal, it is important for RH to reconsider the contractual terms to ensure that employees under one year service are treated fairly and in line with other staff members.

Although there is no set guidelines on who should be chairing disciplinary meetings, the participation of the managers are important as they are more aware of employees performance and conduct. HR should remain impartial in the process whereby they could address appeal procedures

Recommendation

In measure of taking a more strategic approach, RH needs to adopt a clear procedure in managing disciplinaries and grievances. When an incident occurs or brought to the Line Managers attention, the matter needs to be carefully considered whether it is the first incident or an allegation of gross misconduct which potentially warrants disciplinary hearings or the person already has file notes of the same pr similar alleged issue. If it is the first occurrence, it is advised to consider informal coaching for example for poor performance an action plan can be implemented for support.

Having looked at the need for the process, it is necessary to consider the skills require by those involved. It is highly recommended that the Manager in RH undergo a thorough training processes whereby they can be taught how to carry out disciplinary and grievance process. Part of the training program, they can go though case studies and role play which would help them to put their learning into practice. This will result in the managers able to effectively plan, and conduct a range of interviews including disciplinary and grievance in accordance to the requirement of the law and best practice. Designing and delivering HR training workshops to management (e.g. absence management, disciplinary meetings and employment law) in relation to UK employment legislation.

HR manager needs to get involved in coaching and developing managers on their skills and competencies in handling employee relations issues. In the absence of the HR Manager, the managers can contact ACAS helpline for support and guidance.

It is important to learn from mistakes that has happened in the past, in order to prevent the same from happening again.

Managing behaviour can be a daunting g experience for managers. Informal chats can be introduced in order to build relationship between the line managers and their subordinates.

In order to facilitate performance management, the company should look into introducing performance appraisals and 360 degree feedbacks which would help managers to identify issues in relation to performance and tackle them at an early stage without having to go through the disciplinary process. Key performance objectives can be introduce to help employees in performing better.

The contracts of employment should be revisited and reissued in line with the new ACAS code of practice. Clear information should be given to employees in relations to disciplinary and grievance procedure.

RH need to implement an employee consultative committee which can help support employees during disciplinary processes by acting as companions. The employee consultative committee will be helpful when issuing new contract of employment and the introduction of new policies

RH needs to introduce mediation services which would help reduce the number of disciplinaries and grievances in the workplace and this would also help in gaining better working relationship between employees

A list of staff rules should be introduced, so employees are made aware of unacceptable behaviour at work and how they are expected to behave and conduct themselves

The introduction of clear guideline on sickness and absence management will be useful for the organisation. This should include return to work interviews which would help in minimising absences such as short term, long term, disability and ill health.