Employees have a duty to behave so that generally their actions and words are above reproach. A six-month probation period written into contracts for new starters makes it simple to sack someone if they don't make the grade in the early stages, but when an established employee won't or can't comply with workplace requirements, they may have to be dismissed. To do this you must follow the common-sense process set out in the Advisory Conciliation and Arbitration Service (ACAS) Code of Practice on Disciplinary and Grievance Procedures, a new version of which came into force in October 2004.
The core principles are to use procedures:
* to help and encourage
* to inform the employee of a complaint and give an opportunity to respond
* to allow the employee to be accompanied at a disciplinary meeting
* to only take disciplinary action after the facts are established, and the action must be reasonable.
Employers must give the employee a written explanation for disciplinary action and be clear about what improvements they are expected to make.
The employee has an opportunity to appeal. They should not be dismissed for a first offence, except for gross misconduct, and employers should act consistently and deal with issues thoroughly and promptly.
Misconduct is when mistakes are made or performance falls temporarily. It should first be dealt with informally, but any repeats have to be addressed formally.
Gross misconduct is serious incidences or conduct that places children and others at risk, brings the organisation into disrepute, or repeats misconduct for which warnings have been given.
Formal warnings must be preceded by an investigation and a meeting with the employee. At his meeting they have the right to (but do not have to) be accompanied by a colleague or a union representative, who is not a solicitor, their mum or a man from the pub. You have to defer the meeting for five days, once only, if the companion is unavailable.
It is in everyone's interest that the position is immediately clarified. It is a good idea to put things in context with a help-sheet (see box).
DELAYING TACTICS
Employees sometimes try to derail the disciplinary process. Common tactics include claiming that information was not received, blaming others and avoiding meetings through absences.
To deal with this possibility, you should get a signature for everything, investigate every claim of another being responsible, report your findings in writing and re-schedule a maximum of three further meetings before deciding in their absence. The law expects you to behave reasonably - not like a saint.
Plan a disciplinary meeting by writing to the employee, setting out the reasons for the meeting by including a statement such as: 'The result that everyone wants from a disciplinary meeting is that the member of staff continues in their work with a clear understanding of the workplace standards, how to meet them, plus a commitment from both parties to provide what is needed to meet them. Usually, this is in the form of an action plan and regular supervision, combined with a final warning. This is not always possible where there is gross misconduct or acrimony.'
Arrange for a senior colleague, trustee or board member to attend the meeting, and hold it in a private room and, where possible, during working hours. Keep an accurate record of the meeting - a tape recorder plus note-taking does the trick, and people behave better when knowingly being tape-recorded. Bring all correspondence, reports, staff handbook, contracts, job description, drinking water and, essentially, a box of tissues.
At the meeting, stand firm and trust your procedures. Stick to the order of events that has been laid out in your letter, referring to relevant documents to support your case.
If objections are raised about process, counter with, 'Please show me where it is stated in the ACAS guidance.' If a material allegation is now made, such as victimisation, postpone the disciplinary process while it is dealt with.
If the outcome is certain dismissal, set out the hardest position, then gain the employee's co-operation with concessions, such as accepting their resignation or a particular reference depending on the circumstances. If an outgoing employee threatens you with false claims or demands compensation, record it all and refuse to negotiate.
VALID REASONS
Dismissal is normally fair only if the employer can show that it is for reasons related to the employee's conduct or capability - for example, poor timekeeping or frequent absences; because a statutory duty or restriction prohibited the continuation of the employment, such as getting a criminal conviction; or some other substantial reason, such as breaching policies.
Absences of about 4 per cent of working time a year are average. Long-term (more than four weeks) or frequent absence because of ill-health pose difficult problems for management on humanitarian grounds, but in small out-of-school teams, the effects on the service can be devastating.
Employees have a duty to attend work regularly, and you are within your rights to dismiss an employee who does not come to work, providing you follow a fair process.
Write to the individual's GP (with their permission), asking the doctor's opinion on how long it will be before their patient can return to a normal work pattern, then use this information and ACAS advice to make a decision.
Absences through stress require special handling because your actions in addressing them can contribute to the employee's problems, but as long as it is not work-related you cannot be made responsible for solving staff problems or lowering performance expectations. Stick clearly to the rules rather than discretionary measures; it is best to refer to the impartial advice of ACAS.
Wherever possible, a person being dismissed should be allowed time to say goodbye to children, parents and colleagues, but not if relations are acrimonious. In either case, prepare for questions and sadness before making a short, discreet announcement personally and in an immediate newsletter with impeccable confidentiality.
Jackie Nunns is a founding member and director of the Trojans scheme, a charity running out-of-school services in London
HELP-SHEET
Working with children requires a high level of commitment and it would be unfair to the children and other workers if we accepted poor performance.
The purpose of the disciplinary process is to bring about a necessary change in an individual's workplace standards.
You will be told what the complaint is, the matter will be investigated and a meeting will be held with you at which you have the right to be accompanied by a colleague or a union representative if you choose.
STAGE 1 VERBAL WARNING
A formal, verbal warning tells you that:
* your conduct has been unacceptable
* your manager does not trust you to make amends without formal intervention
* you may be interviewed to see that you understand your responsibilities
* A record is kept on file for three months.
STAGE 2 WRITTEN WARNING
A written warning is issued if a similar thing happens again within three months of a verbal warning and tells you that:
* there are doubts about your ability or willingness to observe standards
* we may now place conditions on your employment to address this
* your work will be monitored
* a record is kept for 12 months. A further warning will be given if the behaviour is repeated and you may lose your job
* if you seek a reference from us, this information could be passed on.
STAGE 3 FINAL WRITTEN WARNING
If there is a repeat in 12 months, or a matter is very serious, a written report of your performance overall is produced and a final written warning given. This tells you that:
* this behaviour will not be tolerated again
* it is likely that you will be demoted
* if it happens again you may be dismissed without notice
* if you leave and seek a reference from us, your new employer will be informed.
TOP TIPS
* Executing a dismissal is an emotionally draining process. Enlist one person with whom you can share the burden. Then read the documents obsessively until you are quite certain there was nothing else you could do. Then take a day off.
* If you have serious concerns about a person's ability or intent in working with children, you are compelled to report them to the authorities.
References to subsequent employers must be accurate and truthful, and that includes being frank about unacceptable performance.
& If you need help with your procedures or individual cases, including absence, ACAS provides an excellent free service for employers and employees, including easy-to-read guides, helpline and training.
www.acas.org.uk, helpline 08457 474747.
* Inland Revenue leaflet CA30 gives guidance on sick pay, seeking medical advice and control periods for different illnesses.
www.inlandrevenue.gov.uk, telephone 0845 7143 143.
* For information on the Employment Relations Act 2004 go to www.dti.gov.uk/er/er_act_2004.htm.
* Expectations of staff conduct are laid out at www.4children.org.uk/uploads/ information/1GettingitRight1.doc.
