Discipline at work is when your employer uses disciplinary rules and procedures to set the behaviour standards expected of you at work. They also make clear the actions and outcomes if you breach those rules. The outcomes could be warnings, performance management or ultimately dismissal.
Your Employer must provide written procedures for discipline and grievance. The Employment Rights Act 1996 (ERA 1996) and the Employment Act 2002 (EA 2002) require that parts of your Employer’s discipline and grievance procedures must be included in a written statement of employment particulars. In addition, the ACAS Code of Practice on Disciplinary and Grievance Procedures states that Employers should have written disciplinary and grievance policies, which have been developed with the involvement of employees and, if appropriate, their representatives. Breach of the Code of Practice does not, of itself, give rise to liability, but may affect any compensation awarded in an Employment Tribunal claim.
The written statement of major employment terms must be supplied within two months of your start date. The statement must be updated every time changes are made to those terms (sections 1-4, & 11 ERA 1996, section 35 & 37 EA 2002). Your employer is allowed to use alternative documents such as a contract of employment or letter of appointment instead of a formal written statement of particulars, to provide the information (sections 7A & 7B ERA 1996).
During the two months, if you start working outside the UK for more than one month, you must be given the statement before you leave to begin work abroad (sections 1(2) & 2(5) ERA 1996). If your employment lasts for less than one month (short-term employment), you are not entitled to receive written particulars of employment (section 198 ERA 1996). So long as you have worked for one month or more, you are entitled to the written statement even if you have left the job after two months (section 2(6) ERA 1996).
From 6th April 2020, the Employment Rights (Miscellaneous Amendments) Regulations 2019 extends the right to a written statement of employment particulars to all categories of ‘worker’ and not just ’employees’. On the same date, the Employment Rights (Employment Particulars and Paid Annual Leave) (Amendment) Regulations 2018 says that the right to written employment particulars starts on the day that you start work. The days of the week on which you work, terms and conditions about paid leave and other benefits, probationary periods and training must all be included in the written particulars.
Terms dealing with disciplinary and grievance rules and procedures, sickness and injury absence and pay, pensions and pensions schemes and collective agreements can be dealt with in a reasonably accessible separate document (such as a staff handbook or collective agreement) which should be mentioned in the written statement (sections 2(2), 3(1) & 6 ERA 1996).
The written statement of employment particulars must include a note of the following ;
These requirements do not apply to rules, disciplinary decisions, decisions to dismiss, grievances or procedures about health and safety at work [section 3(2) ERA 1996)].
If your Employer does not give you a written statement of employment particulars within two months or gives one which does not comply with the law, you or your employer can apply to the Employment Tribunal to decide what particulars should have been included in the statement [section 11(1) ERA 1996].
Where you have been given a statement that purports to comply with the statutory requirements and a question arises as to the particulars which should have been included, either you or your employer can refer the question to the Employment Tribunal for a determination [Section 11(2) ERA 1996] .
Under section 38 EA 2002, the Employment Tribunal will award you compensation if your employer does not provide a proper written statement of employment particulars. But, that claim must be brought together with a claim listed in Schedule 5 EA 2002 which should have been decided in your favour. So, compensation for failure to provide a written statement is not a stand-alone claim, and in order to get it, you should have won the claim that it is attached to . Your employer should also NOT have provided the written statement by the time you file your claim in the employment tribunal.
The Employment Tribunal can find in your favour and give you no compensation or compensate you. Where the ET decides to compensate you, it must award two weeks’ pay or increase the compensation for your Schedule 5 EA 2002 claim by the value of two week’s pay. The Tribunal can award four week’s pay instead if it considers it just and equitable in all the circumstances to make the higher award.
Employers usually state in the employment contract that the disciplinary procedures are not part of the contract. But, disciplinary procedures may become incorporated into your employment contract.
If the disciplinary procedure is incorporated into your contract and a disciplinary process is in breach of the provisions you can apply for an injunction to stop the disciplinary process and/or a declaration. In the case of Focsa Services (UK) Limited v Birkett the Employment Appeal Tribunal (EAT) said that an employee who is dismissed in breach of a contractual disciplinary procedure, can bring a wrongful dismissal claim and sue for the additional period they would have remained employed if the Employer had followed the correct procedure.
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