Prepare a report which sets out the legal issues that have arisen in the two scenarios and give your advice on the steps that should be taken by the company
Prepare a report which sets out the legal issues that have arisen in the two scenarios and give your advice on the steps that should be taken by the company.
The ADS Building Supplies Company operates from a number of sites in the East Anglia region. They supply materials, tools and supplies needed to complete all types of building work including timber, bricks, cement, kitchen units, plaster, paint etc. They have a fleet of delivery vehicles to deliver materials direct to building sites and customers. The company has a large depot covering an 8 acre site based in Camford and has smaller depots in Braintree, Redfield, Bury St Edmunds, Newmarket, Thetford and Witham. They employ over 250 staff - 60 in administration and 20 drivers, whilst the remaining staff are sales and advisory staff at the seven sites.
The HR department consists of 2 HR staff - an HR Manager, you, and an HR Officer John Pitt, much of whose time is taken up with recruitment, staff record keeping and payroll administration. You joined the company as HR Manager 3 weeks ago when the HR Manager post was created. The department as such had not existed previously, consisting of the Company Secretary who oversaw the work of a Personnel Officer, David Thompson. As the company has grown, the pressure has also grown to have a more focused HR presence. When the previous Personnel Officer retired a month ago the company decided to create a HR function. It has become clear to you that David Thompson had only been able to keep on top of the day to day administration and that few HR policies and procedures exist. Those that do are out of date; for example, they have general disciplinary and grievance procedures which were produced by David in 2002, along with a basic staff handbook. (Extracts from the disciplinary and grievance procedures are attached, along with an extract from the staff handbook). There are no appraisal or job evaluation systems in place for any of the levels of the organisation. Management training on the application of policies and procedures is rather patchy, particularly with regard to people management training in the outlying depots.
There is a standard format to most of the staff contracts, with Administration staff having “normal” working hours of 8 – 5 Monday to Friday. There are also a few “variations” to contracts at the various sites which have developed not only at the Depots but also at the Camford main site, to meet specific organisational and personal requirements.
It is Monday afternoon and the following two issues have arisen.
You are asked to prepare reports which set out the legal issues that have arisen in the two scenarios and give your advice on the steps that should be taken by the company. All such advice and action must be underpinned by relevant employment law sources including case law.
The Manager of the Bury St Edmunds Depot, George Hyatt, has telephoned to tell you that he has dismissed three members of staff for theft. He has asked that you deal with the necessary paperwork. The three individuals are Jim Kraig, a security guard, and Mike Simes and Ruth Mesi, both sales staff. George tells you that he called them into his office on Thursday morning last week and told them that he suspected them of theft. He suspended them from that moment and asked them to come in at 9.00am on Monday morning to attend separate disciplinary hearings for each of them. The hearings, each of which took about 20 minutes, were heard by himself and the Floor Sales Manager and all three categorically denied the theft. After the hearings he immediately called all three back into his office and told them they were dismissed. They all repeated that they were innocent. Jim in particular stated that he was “not going to take this lying down”. George says he believes he followed the disciplinary process in the dismissal.
George tells you that for some time he has been concerned that stock has been “disappearing”. As a result, for the past month, he has been carefully analysing the shortages and checking the sections where stock has gone missing most frequently. It would appear that at least £400 worth of stock, such as bags of plaster, cement and gravel etc., is missing and unaccounted for. The section where the majority of the stock appears to be missing is based in the section of the yard where there are 5 regular staff, including Mike and Ruth. As it was hard to tell who was responsible, he has moved staff for 5 day blocks in pairs to other sections to try and isolate who might be the culprit. Moving staff around is not unusual and is seen as a way of ensuring staff know what all the stock is and develop product knowledge, so these movements have not caused anyone to question this process. He states that he believes he narrowed the pilfering down to the two most likely members of staff, Mike Simes and Ruth Mesi.
George admits that he has not actually seen anyone taking materials and with the fluid movement of staff around the sales departments it is not possible to be absolutely certain who the culprits might be. There are video cameras in the yard, but they are fixed. The pilfering seems to be in one corner of the yard just out of direct view of a camera and a clear view of what is happening cannot be recorded
The sales system in the yard and other large materials sections is that sales assistants fill out sales ticket forms as materials are loaded into customer vehicles. These tickets are then taken by the customers to the sales desk to pay and the tickets are stamped as paid at the desks. Small items such as packs of nails get taken off the shelves by customers to the sales desk and added to their ticket there. When the vehicles are driven out of the depot there are two ‘security guards’ who check the tickets against the vehicle contents. Builders’ vehicles tend to have materials and equipment already in them and once stock disappears into them it can be difficult to be sure what has just been loaded into the van. This is a time-consuming process and consequently at busy times the guards simply just nod vehicles through, especially if there is a queue. All vehicles are meant to be checked, including those belonging to staff. George believes that, if Mike and Ruth have been ‘helping themselves’ to goods, they must have been driving out with the heavy bags in the boot of a car, as the items are too big to otherwise carry off site. He tells you that he noticed that Jim Kraig, one of the guards, was on annual leave for a week and George thinks that no goods went missing that week. George said that he could see on the CCTV system that Mike and Ruth nearly always drove through Jim’s side of the exit gate, even when the queues were shorter at the side of the gate manned by the other security guard. Jim normally just gave a cursory glance inside their vehicle or nodded them through. He believes that Jim deliberately waved through Mike’s and Ruth’s vehicles knowing that there were unpaid-for goods inside their vehicles.
These observations convinced him that the three were working together in order to take goods away without paying for them. George has seen Jim and Mike at the pub together many times and knows that they are good friends. Ruth, on the other hand, does not mix socially with other staff, but George knows that Ruth and her partner have just bought an old house which they are renovating, so would need building materials.
The three members of staff have good disciplinary records and been with the company a fairly long time with Jim having 10 years’ service and Mike has been with them for 4 years. Ruth has been with the company for 3 years.
What legal issues do you think this dismissal raises and what will you do now?
As you were about to leave the office for the day, two members of staff knocked on your door and asked if they “could have a brief chat.” You recognise these two ladies as Vatsala Mein and Helene Williams, both from the administrative department.
Vatsala has been with the company for five months and seems to be a reliable worker. Shortly after she joined the company, Vatsala had been excited to find out that she was eligible to go on a new training course on Basic Accounting which the company would pay for, as they needed more staff to have Accounting skills. This course would give her the opportunity to acquire new skills and move up the pay scale, as she would be able to take on more responsibility at work. Vatsala applied to do the course and was accepted. She was booked onto the next course which is due to start in three weeks’ time and lasts for three months.
Eleven weeks ago Vatsala discovered she was pregnant. When your predecessor, Keith Smith, found out about the pregnancy from a colleague in the staff canteen he wrote to Vatsala saying that as she would be going on maternity leave shortly after the course was completed, the company would not pay for her to do the course, as they thought the training would be wasted on someone who would absent for months from the workplace. When Vatsala questioned the decision she was told that the company would treat a man who was on long-term sick-leave the same way. However, Vatsala is not happy about the decision and asks you if you could reconsider.
Helene was also booked onto the same course and she too was excited about the possibility of being able to earn more money as a result of completing it. She has worked at ADS Building Supplies for several years since she left school. Helene lives with her partner, Frederick, in Camford and has two children. Her partner was recently promoted by his employer - Camford Bank - and he is being redeployed to Corby, 60 miles away, to set up a new branch of the Bank. Keith Smith went into the Bank to arrange his retirement pension six weeks ago where he met Fred whom he had previously met at a staff function. Fred was excited about his promotion and told him about his move to Corby.
When he came back to the office David emailed Helene saying that, as he understood there may be a possibility that she may be relocating with her partner, he was withdrawing her funding for the course and she would not be allowed time off work to complete it. Helene came to see him and said that she had no intention of leaving as her partner was planning to commute to Corby. Nevertheless, David refused to reinstate her, as he felt that she may decide to leave and move there anyway and the company could not afford to waste money training people who may leave the organisation shortly after.
Vatsala and Helene have heard today that two of their colleagues, both male and new to the company, have been allocated places on the course. Both are aggrieved about the situation and ask you what you can do about it.
Further Case Scenario Background Information:
ADS Building Supplies Disciplinary Procedures (extract)
The Company’s aim is to encourage and help individuals to improve their conduct and achieve and maintain standards of job performance and attendance. The company rules are in your staff handbook and are also displayed in the general office at each site. This procedure applies to all employees. The aim is to ensure consistent and fair treatment for all.
- The disciplinary procedure is designed to establish the facts quickly and to deal consistently with disciplinary issues. No disciplinary action will be taken until the matter has been fully investigated.
- Employees will be informed of any allegations against them at least 3 days before any formal disciplinary meeting is held.
- At final stages only, employees will have the opportunity to state their case and be represented, if they wish, at the hearings by a fellow worker where deemed appropriate.
- No employee will be dismissed for a first breach of discipline except in the case of gross misconduct when the penalty will be dismissal without notice or payment in lieu of notice.
- The procedure may be implemented at any stage if the employee’s alleged misconduct warrants such action.
Minor faults will be dealt with informally but where the matter is more serious the following procedure will be used:
Stage 1 - Oral Warning
If conduct or performance does not meet acceptable standards the employee will normally be given a formal oral warning, which will be recorded, but will be “spent” after 6 months, subject to satisfactory conduct and performance. S/he will be advised of the reason for the warning, that it is the first stage of the disciplinary procedure, and of his or her right of appeal.
Stage 2 - Written Warning
If the offence is a serious one, or if a further offence occurs, a WRITTEN WARNING will be given to the employee by the supervisor. This will give details of the complaint, the improvement required and the timescale. It will warn that action under Stage 3 (below) will be considered if there is no satisfactory improvement and will advise of the right of appeal. A copy of this warning will be kept on the individuals personnel file, but will be regarded as “spent” after 12 months of satisfactory conduct and performance.
Stage 3 - Final written warning or disciplinary suspension
If there is still a failure to improve either conduct or performance to a satisfactory level; or, if the misconduct is sufficiently serious to warrant only one written warning but not sufficiently serious to warrant dismissal (in effect both a first and final warning) A FINAL WRITTEN WARNING will be given to the employee. This will give details of the complaint, and warn that dismissal will result if there is no satisfactory improvement within a specified timescale, and will advise of the right of appeal. A copy of this final written warning will be kept by the line manager but it will be “spent” after 24 months, subject to satisfactory conduct and performance. Alternatively, consideration may be given to imposing a penalty of a disciplinary suspension without pay for up to a maximum of five working days.
Stage 4 – Dismissal
If conduct or performance is still unsatisfactory and the employee fails to reach the prescribed standard DISMISSAL will normally result. An appropriate senior manager can take the decision to dismiss. The employee will be provided, as soon as reasonably practicable, with written reasons for the dismissal and the date on which the employment will terminate.
An employee who wishes to appeal against a disciplinary decision should inform the Personnel Manager within two working days. An appropriate manager along with the Personnel Manager will hear the appeal and their decision will be final. At the appeal any disciplinary penalty imposed may be reviewed but cannot be increased.
The following list provides examples of offences that are normally regarded by the Company as gross misconduct:
- Theft, fraud, deliberate falsification of records, deliberate damage to company property
- Fighting, and physical assault on another person
- Serious incapability through alcohol or being under the influence of illegal drugs
- Any operation of machinery after taking any alcohol or drugs which impair abilities to operate machinery
- Serious negligence which causes unacceptable loss, damage or injury
- Serious act of insubordination
- Any periods of absence exceeding 3 days without “good cause” and without the express permission of management (employees should note the sickness absence reporting procedure in staff handbook)
If you are accused of an act of gross misconduct, you may be suspended from work on full pay, normally for no more than five working days, while the company investigates the alleged offence. If, on completion of the investigation and the disciplinary procedure, the company is satisfied that gross misconduct has occurred, the result will normally be summary dismissal without notice or payment in lieu of notice.
ADS Building Supplies Grievance Procedure (extract)
Purpose and Scope
This Procedure applies to all current employees of the company and covers all issues which are amenable to local determination and resolution. The guiding principle of this Procedure is that issues should be resolved as near their point of origin as possible and as soon as possible. In consequence the timescales included in the Procedure may be extended or shortened by mutual consent.
An employee who wishes to raise any issue in which s/he is directly concerned must first raise it with their immediate manager, making it clear that s/he is taking the first step in the procedure.
Their immediate manager will arrange a meeting as quickly as possible so that the issue can be discussed with the employee(s). This meeting will be held in a room away from the general work environment.
If a satisfactory solution has not been reached within a maximum of 5 working days the employee may refer the issue to their Manager’s superior under Stage 3 of the Procedure.
The Manager’s superior will arrange a meeting as quickly as possible so that the issue can be discussed with the employee(s). If the employee wishes to have a fellow employee as their representative present at this meeting, then the employee must notify the Manager of their representative’s name and they will be invited to attend.
If a satisfactory solution has not been reached within seven working days, the employee may refer the issue to the Personnel Manager who will arrange for a Senior Manager to meet with the employee(s) and (where requested) their representative under stage 4 below.
The Senior Manager will arrange a meeting as soon as possible so that the issue can be discussed with the employee(s) and his/her representative – this meeting shall take place not more than seven working days from the employee’s request.
If the Senior Manager is unable to resolve the grievance, the employee(s) can request a final “Appeal” meeting with the Managing Director.
Final Appeal Meeting
The Managing Director will arrange a meeting with the employee(s) and his/her representative in no less than 7 working days (subject to his/her availability). Any decision taken by the Managing Director to resolve the grievance at this stage is final.
Note: If the grievance involves a complaint against the immediate manager of the employee(s) the matter can be referred, in the first instance directly to the Manager’s superior (as under stage 3). However, the immediate manager must be informed in writing of the grievance against him/her.
Extracts from ADS Building Supplies Staff Handbook:
“Sickness absence reporting:
All members of staff who are unable to attend work because of illness must telephone into their depot and speak to their line manager by no later than 10.00 am on the first morning of illness. If the illness is likely to last more than 1 week (6 continuous working days) then a doctors’ certificate is required. If an employee is unable personally to telephone in, then they can ask another person – i.e. relative or spouse, to call in on their behalf.
Failure to notify the company as above may be treated as unauthorised absence under the disciplinary procedure”.
All members of staff are entitled to 20 days paid holiday a year, plus all official Bank Holidays. The holiday year is from 1 October to the 30th September annually. All requests to take leave must be approved by your Manager, and will not normally be refused unless the needs of the service require you to work. To avoid any possible disappointment, you should always clear holiday dates with your Manager well in advance before making bookings or travel arrangements. Holiday entitlement must be used by end of each holiday year.
Your Manager will advise you if, for operational reasons, you are required to take leave at certain times of the year. However, due to the nature of our business there is an expectation that, where possible, the majority of your holiday entitlement will be taken during the months of July and August as these are the slowest business months for the Company.
If your employment begins or ends part way through the leave year, your holiday entitlement for that year will be calculated on a pro-rata basis for each complete calendar month of service”.
“Other Absence: Special Leave or temporary changes to working times
If employees have domestic, family or personal reasons, then unpaid leave of a short duration may be allowed at the discretion of your manager. If there are domestic, family or personal reasons for changes in your working times, these should be discussed and agreed with your Manager.”
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