Level 5 Intermediate Diploma in Human Resource

Management
5HR01 Employment relationship management
Week 3
Learning Outcomes
On completion of this unit, you will:
1.
Understand employee voice,
engagement and practices to
support better working lives
3.
Understand how to manage
performance, disciplinary and
grievance matters lawfully.
2.
Understand different forms of
conflict behaviour and
dispute resolution
4.
Understand the role of
employee bodies in the
employment relations.
Learning Outcome 3
Understand how to manage performance, disciplinary and grievance
matters lawfully
3.1: Explain the principles of legislation relating to unfair dismissal in respect
of capability and misconduct issues.
What is dismissal?

• A dismissal occurs when an employer terminates the employee’s contract

• Employees have the right to not be unfairly dismissed
• In most cases employees will need to qualify before they can make a complaint at
an employment tribunal
• 1 Years continuous service before 6 April 2012
• 2 years for employees starting employment on or after 6 April 2012
• In unfair dismissal claims you must make the claim to a tribunal within 3 months
of being dismissed.
Fair reasons for dismissal

capability conduct

contravention of
redundancy a statutory duty
or restriction

some other
substantial
reason

Section 98 of the Employment Rights Act 1996

SOSR : “Some Other Substantial Reason”

• Third party pressure

• Personality clash
• Imprisonment.
• Dismissing replacement employees
• Dismissal of spouse
• Misrepresenting facts on CV
• A refusal to accept changes in terms and conditions
• Most dismissals under this heading arise because the employer is taking action to
protect his/her business interests and therefore could be justified

https://peopleskillshub.cipd.co.uk/blogs/what-sosr-dismissal
Discussion

What is unfair dismissal?

Unfair Dismissals

• Common pitfalls
• Inconsistent approach
• Focus on guilt rather than mitigating circumstances
• Misconduct v capability
• ‘Unreasonable’ response
• Not keeping notes
• Failure to provide sufficient notice
• Not in accordance with disciplinary procedure
• Insufficient time to correct short comings
Unfair Dismissal

Dismissals are classed as 'automatically unfair' if the reason for dismissal is

connected with an employee exercising specific rights relating to:
• pregnancy: including all reasons relating to maternity
• family reasons: including parental leave, paternity leave (birth and adoption),
adoption leave or time off for dependants
• representation: including acting as an employee representative
• trade union membership grounds and union recognition
• part-time and fixed-term employees
• pay and working hours: including the Working Time Regulations, annual leave and
the National Minimum Wage.
• discrimination
Unfair dismissal - exceptions

If you feel you have been unfairly dismissed by your employer, you should try appealing
under your employer's dismissal or disciplinary procedures. If this does not work, then you
may be able to make an appeal to an Industrial Tribunal.
You must make the claim to an Industrial Tribunal within three months of being dismissed.
You can't make a complaint of unfair dismissal if you are a:
• worker (rather than an employee)
• member of the armed forces
• self-employed person
• an agency temp working under a contract for services
• share fisherman
• member of the police service (unless you were dismissed for taking action on health
and safety grounds or whistleblowing)
• exempt from the unfair dismissal provisions by an order made by the Department for
the Economy
Unfair dismissal - Wrongful Dismissal

• Wrongful dismissal is a long-standing concept which is basically a claim for breach

of contract.
• Wrongful dismissal claims will generally be for the payment due for the notice
period.
• Can also be due to contractual payments not being made following the dismissal
• Withholding holiday pay
• Not paying agreed bonus or commissions
• Not allowing exercise of stock options
Unfair dismissal - Constructive Dismissal

• A 'constructive dismissal' occurs when an employee leaves a job of their own accord,
but subsequently alleges that the employer’s breach of contract forced them out.
• Once a constructive dismissal is established, it can be used as the basis of an unfair
or wrongful dismissal claim.
• The employee needs to prove that the employer’s breach was serious enough to
force them leave as a response.

• “If an employer is guilty of conduct which is a significant breach going to the root of
the contract, or which shows an intention no longer to be bound by one more
essential terms of the contract, then the employee is entitled to treat himself as
discharged from any further performance”
• Western Excavating v Sharp .(1978)
Examples of Constructive Dismissal

• Breach of mutual trust and confidence

• Not supporting managers in difficult work situations.
• Harassing or humiliating staff, particularly in front of other less senior staff.
• Victimising or targeting particular members of staff.
• Changing the employee's job content or terms without consultation.
• Significant changes in the employee's job location at short notice.
• Falsely accusing an employee of misconduct such as theft
• Excessive demotion or disciplining of employees without following proper
procedures.
• Not paying employees
Formal hearings and warnings

3. Disciplinary 4. Decide on
1. Investigate 2. Inform 5. Appeal
Meeting appropriate action
• Carry out full and • Notify in writing. • Employer to • Notify employee in • Employee must
fair investigation, State alleged present evidence. writing appeal in writing
including misconduct or Employee • Misconduct can stating the
investigatory poor performance opportunity to result in a Written grounds for appeal
meetings • Provide copies of state their case. Warning or Final • Appeals should be
• For misconduct written evidence • Employee allowed Written Warning heard without
cases, different to ask questions • Dismissals should unreasonable
people should and call witnesses only be made by delay
carry out the • Employee should Managers who has • Heard by an
investigation be allowed to be the authority to do impartial manager
accompanied at so not involved in the
the meeting case previously
• Heard by an
impartial manager
not involved in the
case previously
Fair and unfair dismissals.

Discipline and Grievance:

• Disciplinary situations include misconduct and/or poor performance. If employers
have a separate capability procedure they may prefer to address performance
issues under this procedure. ... Grievances are concerns, problems or complaints
that employees raise with their employers. ACAS
Importance of acting reasonably

• Informing the employee: Letter/48hrs

• Right to be represented
• Thorough and careful investigation
• Opportunity to prepare case
• Disciplinary hearing
• Opportunity to present case
• Right of appeal
• Appropriate penalty
• Opportunity to improve/correct deficiencies
• Dealt with in good time
• Consistency in how issues are dealt with
Disciplinary procedures

• A disciplinary procedure is a process for dealing with perceived

employee misconduct. Organisations will typically have a wide
range of disciplinary procedures to invoke depending on the
severity of the transgression. Disciplinary procedures vary
between informal and formal processes. (HR Zone)

• Disciplinary situations include misconduct and/or poor

performance. It relates to employee conduct and adherence to
company rules and regulations

• Organisations should have disciplinary procedures in order to

“…help and encourage all employees to achieve and maintain
standards of conduct, attendance and job performance” ACAS
Code of Practice
Misconduct or capability?

Poor performance can be caused by a wide range of underlying issues, which are
sometimes not readily identifiable and can show as;
• Negativism, lack of cooperation, hostility
• Failure or refusal to follow instructions
• Unwillingness to take responsibility
• Insubordination or power games
• Lateness or regular absence without substantial reasons

Poor performance should be managed sympathetically to enable the worker to

address these issues and raise the level of their performance themselves.
Misconduct or capability?
Capability is about an employee's ability
to do their job. Usually it's a capability
issue if the employee has no control
over it. For example, if an employee
becomes unable to do their job due to
an illness and adjustments or support
cannot help.
Misconduct is when
an employee's inappropriate behaviour
or action breaks workplace rules.
Some misconduct examples include:
bullying. harassment. refusing to
do work ('insubordination')
5 types of misconduct

Imbalanced
Discrimination. Theft.
Relationships

Breaking
Insubordination
Confidentiality
Capability

"Capability" refers to the skills, ability, aptitude and

knowledge you have in relation to the job that you are
employed to do. Lack of capability will in most cases lead
to unsatisfactory performance in your role which in turn is
likely to cause problems for both managers and colleagues.
Very few people choose to perform their work badly, make
mistakes, fail to complete tasks or have poor relationships
with colleagues or customers and so this should be
managed in a positive and supportive way.
Learning Outcome 3
Understand how to manage performance, disciplinary and grievance
matters lawfully
3.2: Analyse key causes of employee grievances.
Definitions of grievances

• Grievances – ACAS:
• Grievances are concerns, problems or complaints raised by a staff member with
management. Anybody may at some time have problems or concerns with their
working conditions or relationships with colleagues that they wish to raise.
• ‘Step by step process an employee must follow to get his or her complaint
addressed satisfactorily. In this process, the formal (written) complaint moves
from one level of authority (of the firm and the union) to the next higher level.
Grievance procedures are typically included in union (collective bargaining)
agreements.’(Business Dictionary)
Types of grievances

Pay and Employment Work life

Well being
benefits Contracts balance

Job design /
Relationships Voice
nature of work

Good Work Index | Survey reports | CIPD

Individual and collective grievances

Unfair treatment
Payments and terms and Unfair promotion
Behaviour of Manager (bullying, harassment, Organisation change
conditions decision
etc)

terms and conditions of

Work environment Equal Opportunities Health and safety health and safety
employment

new working
work relations practices/organisational discrimination
changes
 Causes of grievances

Cause of disputes
Law
For 2009 and 2010, following the recession,
Demographics Culture redundancies were the main cause of disputes.
However, since 2011, pay has been the main cause
of disputes in all years except for 2016, when the
main cause was duration and pattern of hours
worked.
Sector Contract terms
Employment
Relationship
Unions Policies

Economy Type of Contract

https://www.cipd.co.uk/knowledge/fundamentals/emp-law/discipline/factsheet
Cause of disputes

Year Wage Benefits Redundancy Working Staffing and work totals

conditions and allocation
supervision

2017 205 0 23 12 35 276

2018 217 8 12 3 32 273

Source: ONS
https://www.ons.gov.uk/employmentandlabourmarket/peopleinwork/workplacedisputesandworkingconditions/datasets/lab
ourdisputestable6workingdayslostwdlbyprincipalcauseinallindustriesandservicesuniteaccessed 17.3.2021
Inequality in treatment

It is against the law to discriminate against anyone because of:

• age
• being or becoming a transsexual person
• being married or in a civil partnership
• being pregnant or on maternity leave
• disability
• race including colour, nationality, ethnic or national origin
• religion, belief or lack of religion/belief
• Sex - gender
• sexual orientation
These are called ‘protected characteristics’ (see Equality Act 2010)
Discrimination

Discrimination can come in one of the following forms:

• direct discrimination - treating someone with a protected characteristic less
favourably than others
• indirect discrimination - putting rules or arrangements in place that apply to
everyone, but that put someone with a protected characteristic at an unfair
disadvantage
• bullying is not formally recognised as inequality of treatment but is a cause of
grievances in the workplace
• harassment - unwanted behaviour linked to a protected characteristic that
violates someone’s dignity or creates an offensive environment for them
• victimisation - treating someone unfairly because they’ve complained about
discrimination or harassment
Inequality in treatment

The gender pay gap is 9.1% per hour for full

time employees in the UK, or £1.32 per hour. It
isn’t true just for part-time work or every
individual age group, and the size of the gap
varies across different types of job.

BBC Gender Gap

Between 2017 and 2018 the

BBC reduced the mean pay gap
from 10.7% to 8.4%.
Unfair rules - why it happens

Equality charity The Fawcett Society says there are four main reasons for the pay
gap:
• Discrimination. Although it’s against the law, some women are still paid less for
the same work.
• Caring. Women are more likely to care for their loved ones and have to work part-
time.
• Tradition. Women are more likely to be in low paid and in low-skilled jobs or in
"feminised” industries.
• Senior roles. Men continue to do most of the senior decision-making jobs.
Interpretation of an agreement

Employee:
• Turn up on time
• Attend work when able
• Honesty - Do not steal – Data Protection Act 2018
• Promote and protect interests of employer – Whistleblowing?
• Fair days work for fair pay
• Act in good faith - Trust
• Be prepared to change
• Follow reasonable instructions
• To exercise reasonable care and skill – vacarious liability
• To act in good faith and fidelity – don’t work for someone else
Interpretation of an agreement

Employer:
• Pay on time and the right amount – no unlawful deductions
• Provide work when able
• Honesty
• Respect private life of employee
• Provide safe and fair working environment – HASAWA 1974
• Fair days pay for a fair days work – Equality clause implied
• Act in good faith – check licences, certificates
• Listen to employees
• To deal with complaints
• Follow reasonable instructions
• To exercise reasonable care and skill – references?
• To act in good faith and fidelity
Break (30 minutes)
Learning Outcome 3
Understand how to manage performance, disciplinary and grievance
matters lawfully
3.3: Explain the skills required for effective grievance and discipline-handling
procedures.
Skills required for grievances

• The employer and line manager should try to resolve any grievance informally in
the first instance.
• Where this is not possible, employers should arrange a formal meeting as quickly
as possible, and should carry out any necessary investigations to establish the
facts of the case. You can get advice on conducting investigations from Acas.
• Employees can be accompanied at any formal meeting and have the right to
appeal against any formal decision made.
• Employers should have their grievance procedure in writing and make sure all
staff are aware of any policy or procedure.
• See Acas Useful templates for letters, forms and checklists guidance and template
policy.
Skills for grievance and disciplinaries

• Resolving issues at local level

• Resolving issues quickly
• Documenting the issues in writing
• Disciplinary investigations can be adjourned to hear grievances first
• Some complaints (Bullying, Harassment, Whistle-blowing) dealt with by a
separate procedure due to confidentiality of the issues
• HR to train Line Managers on Grievance procedure
Skills required

• Active listening
• Questioning
• Investigation
• Interviewing
• Note taking
• Mediating
• Objectivity
• Acknowledging and minimising bias
Active listening skills

• Active listening involves listening with all senses.  As well as giving full attention
to the speaker, it is important that the ‘active listener’ is also ‘seen’ to be listening
- otherwise the speaker may conclude that what they are talking about is
uninteresting to the listener.
• Interest can be conveyed to the speaker by using both verbal and non-verbal
messages such as maintaining eye contact, nodding your head and smiling,
agreeing by saying ‘Yes’ or simply ‘Mmm hmm’ to encourage them to continue.
 By providing this 'feedback' the person speaking will usually feel more at ease
and therefore communicate more easily, openly and honestly.
Active listening

What is a definition of listening?

• is we hear sounds all the time - hearing is not listening , it is one of the five senses
and only a small part of effective listening
• making an effort to hear something
• to hear and consider with thoughtful attention
• complex process
• involves interpretation
• involves understanding
• we listen to 50% of what we hear
Effective listening

What skills are essential for

effective listening?
Listening skills

Hearing / attention Interpretation Understanding

• sift out • Undivided • analyse, think, no

distractions, attention in order assumptions
background noise to interpret • what is said , how
carefully, • Thinking and it is said, take
especially if client digestion them seriously
is quietly spoken concentration
and effort
What is active listening?

• It is demonstrating that you are fully absorbing everything they are saying
• Positive listening noises – yes - I understand - ok - that’s fine - uhhuh - mmm - I
see - I know - that’s alright
• Separate facts from opinion, identify the key points, be rational, take notes,
• Do not - think up counter arguments while the customer is talking, interrupt ever,
react to emotion or emotionally unless with empathy, get distracted
• Slow down - think - stop assuming
Active listening skills

• Posture
• Mirroring
• Distraction
• Eye contact
• Smile
Best practice skills

• Employee informally raises grievance with Line

Manager
• Employee formally raises the grievance to the
Employer
• Employer needs to hold a formal meeting with the
employee (without unreasonable delay)
• Decide on appropriate action
• Employee allowed to take the issue further
Active listening: exercise

You are playing the HR Adviser who is

helping someone who needs advice about
how to deal with their difficult manager OR
any other difficult workplace problem

They don’t want to go to mediation yet but

want to receive some guidance from you

Discuss the issue with your learner

colleague and practice your active listening
skills

Then swap roles and let the other person

play the HR adviser
Learning Outcome 3
Understand how to manage performance, disciplinary and grievance
matters lawfully
3.4 Advise on the importance of handling grievances effectively.
Discussion

Why is it important to handle

grievances effectively?

What effects might there be on

the organisation if grievances
are mishandled?

Are there any examples from

your organisation of this?
The importance of handling grievances well

• To avoid legal claims

• To protect the reputation of the organisation and individual
• To minimise impact on individuals and teams
• To address issues that may impact worker engagement
• Reduce poor morale, absence, withdrawal of goodwill
• Reduce resistance to change
• Reduce resignations
• And minimise negative impact on the psychological contract
Handling grievances fairly

• Psychological contract – employees feel that they are being dealt with fairly
• Employee can raise issues & concerns without fear of being victimised as a result
• Encourage employees to settle grievances informally with their line manager
before the issue escalates
• Grievance procedures allow employers to deal with grievances fairly, consistently
and speedily
• Professional organisations have professional procedures
• The compensation given by employment tribunals can be adjusted by usually
between 10-50% if the employer or employee fails to follow the statutory
grievance procedure
Grievance Fair Process

• Starting points
• Start with the end in mind
• Avoid legal challenge
• Company reputation & image
• Your own professional reputation
• Remember the basic human rights
• You want to maintain motivation
• Read your Labour Code *
The Psychological Contract

“The perceptions of the two parties, employer and employee, of what their mutual
obligations are towards each other” (CIPD)

• Stems from common law duty to show mutual trust and confidence
• How employers and managers behave on a day-to-day basis is not determined by the
legal contract.
• More influential than the formal contract
• Tells employees what is their side of the bargain
• What they can expect from the job
• What they must do in return
• Underlying relationship
• Work has changed since 1980’s
The Psychological
Contract
Iceberg model

Left side of iceberg = employee inputs (and employer needs).

Right side of iceberg = rewards given by employer (and employee
needs).
Above the water level: factors mostly visible and agreed by both
sides.
Work | Pay = visible written employment contract.
Black arrows = mostly visible and clear market influences on the
work and pay.
Red arrows = iceberg rises with success and maturity, experience,
etc., (bringing invisible perceived factors into the visible agreed
contract).
Below the water level: factors mostly perceived differently by both
sides, or hidden, and not agreed.
Left side of iceberg = examples of employee inputs, which equate
to employer expectations - informal, perceived and unwritten.
Right side of iceberg = rewards examples and employee's
expectations.
Blue arrows = influences on employee and employer affecting
perceptions, mostly invisible or misunderstood by the other side.
Impact of a Breach of Psychological Contract

“A psychological contract breach is defined as an employee's perception that his or

her organization has failed to fulfil one or more obligations associated with
perceived mutual promises” (Gakovic & Tetrick, 2003).

Breaking the psychological contract can have various negative impacts:

• on job satisfaction
• on the commitment and engagement of employees
• on employee well-being
• on employee turnover.
Impact on the psychological contract

• Aggressive downsizing • Reduced morale

• Trust
• Unfair treatment • Reduced loyalty
• Security
• Falling compensation • Reduced commitment
• Sense of Fairness
(comparatively) • Reduced performance

• Poor performance • Reduced autonomy

• Trust • Reduced loyalty
• Absence/Lateness
• Professionalism • Increased supervision
• Poor quality
• Sense of Fairness • Reduced reward
• Deception

• Psychological contract breach may occur if employees perceive that their firm, or its agents, have
failed to deliver on what they perceive was promised, or vice versa.
• Employees or employers who perceive a breach are likely to respond negatively.
Impact on psychological contract

Is this a fair or ethical way of

classifying employees ?
Informal reality? Too simplistic?
How do we justify this with
workers?
Exercise

• A long standing employee makes a formal grievance against the company for
discrimination against him in the area of L&D.
• He claims that two of his colleagues have been selected for additional L&D
support and enabled to learn skills to enhance their work and their grade
whilst he has been ignored.
• He claims that the reason he has not been selected is because he is overweight
and has a stammer. HE believes this has caused discrimination against him.
• He has even looked up the talent and development policy in the company and
brings this to the meeting to show you to explain that he is not deadwood and
he has just been discriminated against.
• You look back on all his performance reports and find no issues he has been a
good and steady worker but not outstanding. You talk with his manager and
find that his manager doesn’t know him very well; there seem to be other
workers in his team that he knows better – he says he has never had any
problems with his performance.
Finish