Dear Hrlaw Auntie
I am the HR Manager for a medium sized insurance brokerage in the City. One of our brokers has informed me that his PA’s performance and general attitude to work has degenerated recently. He has waited some weeks to see whether the matter would resolve itself, however, the problem seems to be getting worse and he wants to have an informal chat with her regarding the fact that she does not seem to be concentrating on her work, and as a result is making silly mistakes. Her colleagues and other line managers have complained that she is being abrupt and offhand with them and is not treating them with the respect that they deserve. This is creating an unpleasant working environment.
As the chat will be informal, I am not sure whether this constitutes part of the company’s formal disciplinary procedure, and whether or not the PA has the right to be accompanied to that meeting. At this stage, we do not know whether we will take any disciplinary action against the PA, as we first need to hear her explanation for her behaviour before making a decision about what to do next. Given the PA’s recent tendency to fly off the handle, the broker thinks that she may well demand to bring a lawyer with her to the meeting. Is she entitled to do so?
If we do decide to give the PA an oral or written warning, for what period should we retain a copy or note of the warning on her personnel file?
Yours In-a-flap about disciplinary chats
Informal disciplinary chats can be a confusing area and people are often unsure whether an informal chat about performance and behaviour constitutes part of their company’s formal disciplinary procedure. Most first time minor cases of misconduct and/or poor performance are dealt with initially by having an informal chat, which may result in informal advice, coaching and counselling.
If the broker gives the PA an informal oral warning at the end of their chat (namely an off-the-record warning which does not constitute part of the company’s disciplinary procedure), then he should ensure that the PA understands clearly what she needs to do in order to improve her performance and the ways in which she needs to modify her behaviour, and the fact that it may be necessary to invoke the formal disciplinary procedure if there is no improvement.
He should also make it clear to her how her performance and conduct will be reviewed and over what period. She must be told what action will be taken against her if she fails to improve to the requisite standard. Informal warnings or counselling are not part of the formal disciplinary procedure and the PA should therefore be informed of this. The PA would not be entitled to be accompanied to the disciplinary meeting either by a fellow worker or trade union official in such circumstances, as such matters are usually best resolved at the informal stage directly by the worker and the manager concerned. If however she does ask to be accompanied, you may wish to consider granting her request, depending on the particular circumstances of her case.
It may appear heavy handed if a member of the HR department sits in on that meeting. However, the broker should make a detailed note of the content of the meeting so that he has an accurate contemporaneous record. This document will be helpful if the company subsequently needs to invoke the formal disciplinary procedure against the PA. The note will also serve as useful evidence if the PA subsequently institutes Employment Tribunal proceedings against the Company.
A more formal approach
If there is a possibility that the broker may give the PA a formal oral warning at the end of the disciplinary chat, then the PA must be given the opportunity to be accompanied to the disciplinary chat by a colleague of her choice or a trade union official.
If the PA is given a formal oral warning, she should be advised of the reason for the warning and she should be informed that it constitutes the first step of the formal disciplinary procedure. She should also be informed of her right to appeal against the warning. A note of the oral warning should be recorded on the PA’s personnel file but should be disregarded for disciplinary purposes after a specified period, for example, 6 months.
If the broker takes the view that the PA’s conduct is more serious, then the PA should be informed of her right to be accompanied to the meeting. It may be appropriate for the PA to be given a formal written warning giving details of the complaint, the improvement or change in behaviour required, the timescale allowed for this and her right of appeal. The warning should also inform the PA that a final written warning may be considered if there is no sustained satisfactory improvement or change. A copy of the written warning should be kept on the PA’s personnel file but should be disregarded for disciplinary purposes after a specified period, such as 12 months. A member of HR should be present at the meeting and should take detailed notes of the meeting which should then be kept on the PA’s personnel file.
When the broker decides whether a disciplinary penalty is appropriate, and if so, what form it should take, he should bear in mind that he needs to act reasonably in all the circumstances. Relevant factors would include the extent to which standards have been breached by the PA, the way in which the company has treated similar cases in the past, the PA’s past track record, her position, her length of service and any special circumstances which may make it appropriate to adjust the severity of the penalty.
The right to be accompanied
In relation to the statutory right to be accompanied, the position is that workers are entitled to be accompanied by a fellow worker or a trade union official where they are required or invited by their employer to attend a disciplinary or grievance hearing and when they make a reasonable request to be so accompanied. Even if the worker does not request to be accompanied to the disciplinary or grievance hearing, it is best practice for an employer to inform the worker of their right to be accompanied.
Employers should note that the right to be accompanied applies to all workers, not just employees and would therefore include independent contractors, part-time workers, temporary workers and those on short-term fixed contracts.
In summary, the statutory right to be accompanied applies specifically to hearings which could result in:
* the administration of a formal warning to a worker by the employer;
* the taking of some other action in respect of a worker by the employer; for example, suspension without pay, demotion or dismissal; or
* the confirmation of a warning issued or some other action taken.
Workers are not entitled to be accompanied by anyone other than a fellow worker or trade union official, unless they have an express contractual right to be accompanied by some other person (such as a partner, spouse or legal representative). In the absence of a contractual provision to the contrary, the PA would not be entitled to be accompanied to an informal disciplinary chat or a formal disciplinary meeting by her lawyer.
A companion who is a fellow worker is entitled to take a reasonable amount of paid time off work to fulfil their responsibility. This time off should cover in addition to the hearing a reasonable period of time off for the companion to familiarise himself with the case and confer with the worker before and after the hearing. In the same way, a lay trade union official is entitled to a reasonable amount of paid time off to accompany a worker at a hearing provided that the worker is employed by the same employer. Before the hearing, the worker should inform the employer of the identity of their chosen companion. The chosen companion has a statutory right to address the hearing and ask questions on the worker’s behalf, but he does not have the statutory right to answer questions on the worker’s behalf.
If the chosen companion cannot attend the disciplinary hearing, on the date proposed, the worker can offer an alternative time and date provided that it is reasonable and is within 5 working days of the original date set for the disciplinary hearing.
Failure to allow a worker to be accompanied to a disciplinary or grievance hearing can lead to the worker making a complaint to an Employment Tribunal. If the Tribunal upholds the worker’s complaint, the employer can be ordered to pay compensation of up to 2 week’s pay. This is also likely to lead to a finding that any dismissal has been procedurally unfair.