InsightsInsight - Employment & HR - POSTED: November 11 2019
Tops tips on how to manage disciplinary and exit processes and procedures
Given the sensitivity often surrounding staff disciplinary issues, it’s crucial for all parties concerned to manage issues legally and appropriately.
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As with any other organisation or commercial business, schools and education establishments are occasionally required to deal with staff disciplinary issues. Given the sensitivity often surrounding these circumstances, it’s crucial for all parties concerned to manage issues legally and appropriately.
In our recent forum, hosted in partnership with accountancy, business and financial advisers, Kreston Reeves, we provided guidance on how to effectively manage disciplinary and exit processes and procedures within the education sector.
Below you will find an event summary featuring takeaways from the forum, practical tips and legal guidance.
Top tips – disciplinaries
- Employers and those implementing internal disciplinary policies should always be aware of both their internal disciplinary procedure and the statutory ACAS Code of Practice on discipline and grievance, to ensure that a fair procedure is followed.
- It’s advisable to include a list of conduct considered to be misconduct and gross misconduct and specific examples where possible.
- It’s important for Multiple Academy Trusts to maintain effective communication across sites to support employees, ensure consistency and add a personable touch
- Building policy and procedure into professional training is key to ensure those implementing the policy fully understand and follow it.
- Having appropriate policies in place, ensuring that they are understood, and that staff are trained in them, as well as having up-to-date and adequate paper trails which may be used to demonstrate at tribunal that an employer has taken all ‘reasonable steps’ to avoid liability for acts of discrimination or harassment by a worker.
Top tips – how to manage suspensions
- Suspending an employee should be a well thought out decision following carefully considered assessment – not an automatic reaction.
- Documenting and leaving a paper trail of the considerations in reaching a decision to suspend is crucial to evidence why suspension was appropriate in all circumstances.
- Suspension should be for as short a period as possible, kept under review and the employee kept updated. Remember that suspension is not a disciplinary action.
- If suspension is not appropriate this can lead to a breach of the implied duty of trust and confidence, allowing an employee to resign and claim constructive unfair dismissal. You must, therefore, be able to show ‘reasonable and proper cause’ for the suspension.
Top tips – grievances
- Often, having an open and honest conversation with an employee can put an end to a grievance. Discussions directly with employees on behavioural expectations can create useful workplace guidelines and assist, should it be necessary to undertake disciplinary action.
- Where a grievance has been raised post-termination, the individual is no longer an employee. This means that unless your policy says otherwise there is no strict requirement to deal with the grievance. However, where discrimination or safeguarding issues are raised it’s best practice to investigate regardless – you may be obliged to do so.
- While it can be useful to have informal conversations with employees, inform the employee how to raise a formal grievance if they wish to take it further.
Top tips – exits and settlement agreements
- For accounting and tax purposes, it’s often helpful to separate and identify the different types of payments that might be made under a settlement agreement. Generally, the main payments are usually referred to as ‘severance’, ‘compensation’ and ‘ex-gratia’.
- Severance usually covers the overall settlement package being offered to bring the employment to an end. This would include all elements being paid under the agreement.
- Compensation payments usually represent an amount of compensation awarded at tribunal to cover, for example, injury to feelings. Usually, compensation payments can be made tax and NI free up to £30,000 but you to need to be careful as, if payments relate to termination of employment, they may be subject to deductions. Remember that any compensation payment over £50,000 must receive prior Education Funding Agency (EFA) approval.
- In relation to ex-gratia payments, the employer does not usually consider there is any duty or contractual obligation to pay the sum but offers to make a payment as a gesture of goodwill with no admission of liability in order to reach settlement terms. These payments can usually be paid free of tax and NI up to £30,000.
- Remember that where an employee is not working their notice or part of their notice, a post-employment notice pay (PENP) calculation must be carried out. There can be differences between a pure notice pay calculation and PENP calculation. The higher between the PENP and payment in lieu of notice should be reflected in the settlement agreement.
- It can be important to take a commercial view on whether to defend a claim to tribunal or settle. A balance of risk, cost and management time needs to be struck.
- Overuse of settlement agreements can lead to a culture of employees bringing claims simply for the sake of getting a settlement payment. Taking a firm stance where prospects of success are high and considering whether settlement is appropriate on a case-by-case basis is important.
Top five action points
- When dealing with a disciplinary always have in mind the school’s policy as well as the ACAS Code of Practice on discipline and grievance.
- Carefully consider each case on its own facts and all relevant circumstances.
- Always assess the specific circumstances before suspending an employee.
- Always leave behind a detailed and thorough paper trail of any decision-making process.
- Be clear and identify each separate type of payments being made under a settlement agreement as these may require different approvals and/or have different tax treatment.
Find out more about all other upcoming events and webinars here.
For more information on HR support for schools and academies, visit the Kent HR website.
For further advice regarding any of the topics discussed please contact our Employment team.
This content is correct at time of publication
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