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the importance of rules and regulations in the employment relationship

It is generally accepted that there is a need for procedures in the employment relationship
to ensure that both managers and employees are aware of the expectations
of the organization (Marchington and Wilkinson, 2005). In this sense managers need
a framework in which to direct and guide behaviour of employees in the workplace.
Similarly employees need to understand their place in the organization and its expectations.
Thus, there is a need for some articulated order which is likely to be important
to sustain organizational effectiveness. Consequently rules are needed which
cover the whole range of human resourcing, such as what work is done, how jobs
are constituted, training and promotion, hours of work, health and safety and standards
of behaviour and performance. Equally, there is a need for procedures to provide
a framework which allows for notions of organizational justice and reciprocity.
This point is particularly true when we think of grievance and disciplinary procedures.
We can conceptualize grievance and disciplinary procedures as being complementary,
but also distinct. In this way the former is a mechanism whereby
employees can challenge management’s power, either collectively or individually,
and the latter is a way of establishing and maintaining standards which are acceptable
to management. Whilst much of this discussion may seem rather prosaic it is
important to recognize that all managers should have at least a working knowledge
of grievance and disciplinary procedures, particularly with regard to the ultimate
sanction of dismissal. Edwards (2005) notes how dismissal represents the ‘dark’ or
‘murky’ side of HRM and is often omitted in many discussions of the subject. It is
though a fact of organizational life, in much the same way as employees choosing
voluntarily to leave the organization. Ultimately, then, as Torrington et al. (2005: 554)
rather neatly express it, ‘The two complementary processes are intended to find
ways of avoiding the ultimate sanction of the employee quitting or being dismissed,
but at the same time preparing the ground for those sanctions if all else fails’.

[ by Frank at 3-8-2009 06:32 edited ]
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Setting the scene on grievance and disciplinary procedures

Salamon (1992: 568) defines grievance as, ‘a formal expression of individual or collective
employee dissatisfaction primarily, but not exclusively, in respect of the
application or non-application of collective agreements, managerial policies and
actions or customs and practice’. In recognizing the distinction between individual
and collective aspects of dissatisfaction many writers suggest that grievances are
usually about individual concerns, whilst collective dissatisfaction is likely to become
a dispute, especially if a trade union is involved. On the other hand, discipline is
defined by the same author as, ‘formal action taken by management against an
individual or group who have failed to conform to the rules established by management
within the organization’ (Salamon, 2000: 565). Often grievance and disciplinary
procedures will be conceptualized in quasi-judicial terms wherein a body of
recognized rules is administered under a judicial-type procedure.
Although the argument in support for the establishment of clear rules and regulations
in an organizational setting seems compelling research undertaken in the
tourism and hospitality industry suggests that in the past some organizations have
been slow to develop policy. For example, Price (1994) found that only 24 per cent of
241 organizations she surveyed had a well-developed disciplinary procedure. More
recently though there is greater prescription emanating from legislation and since
1st October 2004 all employers, regardless of size, have to have a disciplinary and
grievance procedure and to notify their employees of it, in order to comply with the
Employment Act 2002 (LRD, 2006). In developing a policy an obvious starting
point is the influential Advisory Conciliation and Arbitration Service (ACAS) Code
of Practice on disciplinary and grievance procedures. Originally produced in 1977
and most recently revised in 2004 the code of practice provides a series of recommendations
on how best to approach grievance and disciplinary procedures.
Indeed, an awareness of procedure may be particularly apposite for tourism and
hospitality managers as evidence suggests that they may be more likely to find
themselves enmeshed in either a grievance or disciplinary situation. For example, the
Chartered Institute of Personnel and Development (CIPD, 2004) in a recent survey
of nearly 1200 UK and Irish companies (including 142 tourism and retail employers)
found that private sector service employers had twice as many grievance and disciplinary
cases compared to the manufacturing, public and voluntary sectors.

Grievance procedures

What is a grievance? Generally, as we have noted a grievance is the right of
employees to express and attempt to resolve dissatisfaction that they might have
in the work situation. Pigors and Myers (1977: 152, cited in Torrington et al., 2005)
outline degrees of discontent which employees may have in the workplace:
● Dissatisfaction: anything that disturbs an employee, whether or not the unrest is
expressed in words.
● Complaint: a spoken or written dissatisfaction brought to the attention of the
supervisor and/or trade union representative.
● Grievance: a complaint that has been formally presented to a management representative
or to a union official.
Grievances can take a number of forms and Salipante and Bouwen (1990) have
provided a widely used schema to categorize sources of conflict and grievance.
They suggest that conflict can be distinguished in three ways:
● Environmental conflict is primarily concerned with working conditions and
nature of work. These problems will encompass the economic terms and conditions
of the job, the physical job conditions and job demands either being too
great or too little for the individual’s skills and abilities.
● Social substantive these grievances stem from perceived inequalities in treatment
or disagreements over goals or means. Conflict of this nature may be precipitated
by organizational policy or management action, which creates a perception
of inequity arising from how decisions are taken.
● Social relational grievances arise from the relationships between individuals and
groups within the organization, for example, personality conflicts, racism and
sexism.
The findings of the 2004 Workplace Employment Relations Survey echo the
above categorization, whilst also suggesting that the bulk of grievances raised are
more likely to be in relation to Salipante and Bouwen’s environmental and social
substantive aspects. In that sense pay and conditions, relations with supervisors/
line managers and work practices, work allocation and the pace of work were the
most common grievances raised by employees (Kersley et al., 2006).
As suggested by our earlier recognition of Pigors and Myers work all of us at
some point in our organizational lives will have a degree of dissatisfaction with our
work situation, though the extent to which we will be willing to formally articulate
this will vary. Ordinarily, it is unlikely that we will choose to formally register our
dissatisfaction as a grievance. Instead, employees may express their dissatisfaction
in a number of ways short of formally registering a grievance. For example, employees
may simply impose their own unilateral solution through things like increased
absenteeism, withdrawing their goodwill or in a reduction in morale/motivation.
Ultimately the dissatisfaction may be such that the employee chooses to leave and
the high rate of labour turnover in hospitality and tourism suggests that many
employees take such a course of action. If however an individual chooses to stay in
the organization and decides to formally present a grievance it is important that it is
properly considered and addressed. The ACAS code of practice offers a clear procedure
for addressing grievances, based on a three-stage approach (ACAS, 2004):
● The employee informs the employer of their grievance in writing.
● The employee should be invited by the employer to a meeting to discuss the
grievance where the right to be accompanied will apply and be notified in writing
of the decision. The employee must take all reasonable steps to attend this
meeting.
● The employee is given the right to an appeal meeting if they feel the grievance
has not been satisfactorily resolved and be notified of the final decision.
Ordinarily, employees would initially raise the grievance with their line manager,
unless somebody else is specified in the organization’s procedure. Once received a
grievance will then lead to a meeting between the employee and manager where the
grievance will be discussed (and see Torrington et al., 2005 for details of how to
approach grievance and disciplinary interviewing). Finally, the decision will be
communicated in writing to the employee, who if they are still unhappy will then
have the right to appeal, which ordinarily would be dealt with by a more senior manager,
who again will write to the employee with the final decision. Importantly, if an
employee is to subsequently seek to take a grievance further through the employment
tribunal (ET) system, then they automatically have to have first gone through the
organization’s grievance procedure.

Disciplinary procedures

Having examined grievance procedures we can now consider discipline in the
organization. In discussing discipline in the organization it is interesting to note
the extent to which we are likely to be predisposed to obey rules and authority.
Torrington et al. (2005: 555–556) draw on the work of the famous social psychologist
Stanley Milgram to suggest a number of features which explain our propensity to be
obedient towards authority and how this is likely to shape workplace behaviour:
● Family: the inculcation of respect for adult and parental authority encourages us
to generally respect authority.
● Institutional setting: in school, university and work we learn how to function in
an organization, often accepting our subordinate position.
● Rewards: compliance brings rewards, disobedience brings punishment.
● Perception of authority: authority is normatively supported, so we are generally
predisposed to follow organizational and managerial rules, but where this does
not happen the organization may have to take disciplinary action.
Again in developing a disciplinary procedure the ACAS code of practice provides
a template suggesting that good disciplinary procedures should (ACAS, 2004):
● Be in writing.
● Specify to whom they apply.
● Be non-discriminatory.
● Ensure matters are dealt with without unnecessary delay.
● Allow for information about proceedings, witness statements and records to be
kept confidential.
● State the disciplinary actions which may be taken.
● Specify the levels of management which have the authority to take the various
forms of disciplinary action.
● Provide for employees to be informed of complaints against them and where
possible all relevant evidence before any hearing.
● Give employees the opportunity to state their case before a decision is reached.
● Provide employees with the right to be accompanied by a trade union representative
or fellow employee at any hearing.
● Ensure that except for gross misconduct, no employee is dismissed for a first
breach of discipline.
● Ensure that disciplinary action is not taken until the case has been carefully
investigated by management.
● Ensure that employees are given an explanation for any penalty imposed.
● Provide employees with rights to appeal, normally to a more senior manager.
Implicit in the guidelines is recognition of the differing severity of organizational
responses in terms of misconduct and ordinarily the distinction is made between
minor misconduct, serious misconduct and gross misconduct. For many instances
of minor misconduct or unsatisfactory performance a quiet word from a manager
may be all that is needed to improve an employee’s performance and resolve the
issue. However, if this informal action does not bring the desired improvement
then an employer may take a more formal approach. As with grievance procedures
the ACAS code of practice outlines a three-stage approach to discipline. First,
the employer signals to the employee in writing what they have done wrong.
There will then be a meeting to discuss the problem, where the employee will
be allowed to ask questions, present evidence, call witnesses and be given an
opportunity to raise questions about information provided by witnesses. Lastly,
the employer must then decide on the basis of the meeting whether the disciplinary
action was justified and if that is the case the nature of any sanction against
the employee. The decision on disciplinary action will clearly be influenced by the
nature of misconduct and in that sense Figure 12.1 outlines a typical disciplinary
procedure with commensurate organizational responses.
Examples of minor/serious misconduct could include things such as persistent
absenteeism, poor timekeeping, failure to adhere to dress codes or appearance
standards or unacceptable performance and if employees do receive a oral or written
warnings they are likely to have a specified ‘life’, after which they are disregarded.
For example, for an oral warning the period is likely to be for 6 months,
whilst for a written warning it will be 1 year and a final written warning, 2 years
(CIPD, 2005). For gross misconduct ACAS (2004) notes how instances of such misconduct
are likely to be decided by the organization given their own particular circumstances,
whilst still noting some typical examples, including:
● theft or fraud;
● physical violence or bullying;
● deliberate and serious damage to property;
● serious misuse of an organization’s property or name;
● deliberately accessing internet sites containing pornographic, offensive or
obscene material;
● serious insubordination;
● unlawful discrimination or harassment;
● bringing the organization into serious disrepute;
● serious incapability at work brought on by alcohol or illegal drugs;
● causing loss, damage or injury through serious negligence;
● a serious breach of health and safety rules; and
● a serious breach of confidence.

Figure 12.1 Typical disciplinary procedure

Nature of the disciplinary matter                            Management response and action
——————————————————————————————————
Minor misconduct                                                     Recorded oral warning

Serious misconduct or repeated                           Written warning followed by
minor misconduct for which a                                 final written warning
written or oral warning has
been received

Gross misconduct or further                                  Action short of dismissal:
misconduct for which a final                                  • Transfer
written warning has been                                       • Demotion
received                                                                      • Suspension
                                                                                     Dismissal
_________________________________________________________________
Figure 12.1 Typical disciplinary procedure
Recent research undertaken by Industrial Relations Services (IRS, 2005) is useful in
pointing to the reasons for disciplinary action. In a survey of over 100 employers
in all sector of the economy they found that the most likely issues for disciplinary
action were attendance, performance and capability, timekeeping and general behaviour
and conduct. Clearly, most of these aspects are likely to fall into the minor/serious
misconduct category so it is likely to be rare for employees to be dismissed for
gross misconduct. Regardless though of whether an employee is dismissed for
gross misconduct or repeated minor or serious misconduct a key point is that any
dismissal should follow due procedure, something that we now consider.
Employers need to ensure that disciplinary procedures are fully utilized to
ensure that any dismissal is considered ‘fair’, both in a legal and moral sense. For
example, an organization might consider it has acted ethically in dismissing an
employee, but even if an organization or individual acting on behalf of the organization
has acted in good faith, an ET may decide the dismissal was unfair if the
correct procedure is not followed. Clearly, then, a key point in any dismissal is the
notion of whether the organization has acted in an reasonable, equitable and procedurally
fair manner, if not then the organization could be faced with a claim for
unfair dismissal. In considering whether a dismissal is fair or unfair we should
firstly consider acceptable reasons for dismissal. Taylor and Emir (2006) note how the
number of potentially fair reasons was originally five as outlined in the Employment
Rights Act 1999, with a sixth being added under the Employment Relations Act
1999 and further reasons relating to Transfer of Undertaking Regulations (TUPE)
and mandatory retirement being added in 2006. The most likely reasons for dismissal
though are likely to be (and see HRM in practice 12.1):
● Lack of capability: this may refer to when employees may encounter difficulties
in their performance and struggle to fulfil their responsibilities; alternatively
there may also be situations where an employee is unable to do their job due to
ill-health.
● Misconduct: as we noted above this can range from minor to gross misconduct
with differing sanctions.
● Redundancy: the law in redundancy is quite complex, though in simple terms
a redundancy will arise when a business is closing, a workplace is closing or
there is a diminishing need for employees to do particular kinds of work in an
organization.
● Statutory bar.
● Some other substantial reason: this category is deliberately vague as it is intended
to give employers scope to dismiss employees in circumstances that were not
envisaged when the legislation was drawn up.

HRM in practice 12.1 Prime candidates for dismissal?

Rayner (1998) reports on the controversy created in the late 1990s when it emerged that
some local authorities were sending managers on a course to learn how to sack troublesome
employees. The course was run by an American company, Padgett-Thompson.
Amongst other things the course offered participants advice on how to ‘deal with
employees who drive you crazy’ or good performers who had ‘know it all attitudes’. The
course also offered ‘a tried and tested technique for silencing employees who want to
argue about being dismissed’. In addition the course identified four employee types who
managers are likely to want to dismiss. These types were the chatterbox (who keeps
everyone away from work by constantly talking with colleagues), the plotician (who collects
the dirt on colleagues and enjoys manipulating those around them), the shark (who
enjoys making people squirm and chews up anyone who gets in their way) and the
snoop (who delves into other people’s personal things and private lives).
In further considering the notion of whether a dismissal is fair it is important to
recognize that there are a number of things which would be considered automatically
unfair regardless of the qualifying period, these being (LRD, 2006):
● Dismissal on grounds of pregnancy or assertion of paternal paternity or adoption
leave rights.
● Dismissal on grounds of trade union membership or stating an intention to join
a trade union.
● Refusing to work on a Sunday (in the case of retail workers).
● Dismissal on grounds of actual or proposed trade union activity undertaken at
an appropriate time.
● Dismissal resulting from individual’s refusal to join a trade union.
● The dismissal of an employee without going through the required disciplinary
procedure.
● Dismissal connected with the transfer in the organization’s ownership – TUPE
(2006).
● Where no reason for dismissal is given.
● Where the employee has been unfairly selected for redundancy.
● Dismissal on basis of past criminal offence which is spent.
● Unfair dismissal on the basis of sex, race, disability, sexual orientation or
religion/beliefs.
● During the first 12 weeks of official industrial action (i.e. action sanctioned by a
trade union executive body).
● Asserting a statutory right, for example the national minimum wage (NMW).
● ‘Blowing the whistle’ on malpractice in the workplace.
● Refusal to do something on health and safety grounds.
In 2004–05 there were nearly 40 000 claims for unfair dismissal submitted to the
Employment Tribunal Service (ETS, 2005). Of these, the vast majority were withdrawn
or settled with the intervention of ACAS. Ultimately, just over 7500 cases reached a formal
ET hearing. Of those cases that were heard by the tribunal service over 50 per cent
were dismissed, with 46.3 per cent being upheld (ETS, 2005). Clearly in assessing
the fairness or otherwise of the dismissal the ET will assess whether dismissal was
carried out in line with procedures (reiterating the need for organizations to have
well-established and transparent procedures related to disciplinary issues). To
judge whether a dismissal is fair the ET is likely to consider the following issues:
● Was dismissal for admissible reason?
● Was dismissal fair in sense of equity of treatment between employees?
● Was dismissal fair in the sense of the offence or the employee record justifying
the dismissal?
● Did the employer follow proper procedures?
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