Disciplinary for unauthorised absence

[Eloise01]

Re: Disciplinary for unauthorised absence

Please read what I say. As you say you can be dismissed without notice within the 1st month of employment, so if your probationary is 3 weeks as it is/was with McDonalds ....case rested m'lud.

You state with some certainty that no one has ever won a case because no investigation was carried out, that is far too simplistic argument. If no investigation was carried out then that is probably one of several breaches within the best practise. Acas code of conduct is not law however failure to follow it will probably give cause to uphold any ET.

You are backwards engineering your argument to prove a point that was wrong in the first place. You did not specify a probationary period of less than a month - you said that a contract can be terminated without notice during the probationary period, which is not true. It may have escaped your attention, but not everyone works for McDonalds. Probationary periods, which, as I have explained at great length, do not exist in law, can be several months long. The length of them is determined by the employer, and solely by the employer.

Best practice is not law. Tribunals do not rule on best practice, they rule on points of law. And the ACAS code of practice does not say that an employer must hold an investigation. So whether an investigation is held is not relevant to an argument about failure to follow it because an investigation is not part of it! It is up to the employer to determine whether an investigation is necessary, but no tribunal in the land will uphold an unfair dismissal claim on the basis that no investigation was carried out. They determine the fairness in law of a dismissal based on due process (which does not include a requirement for an investigation), whether reasonable belief is estabished, and whether the outcome of dismissal is within the bounds of an outcome that a reasonable employer would consider in relation to the misconduct.

[FlamingParrot]

Re: Disciplinary for unauthorised absence

Some European countries actually have specific probationary contracts in law - when you start with an employer you get a probationary contract for a specified (in law) period of time. During that contract you have no employment rights. If the employer wishes to retain you they must, at the end of that contract, provide a "permanant" contract and you get full employment protection from the start of that contract. It is a system which I am particularly fond of.

I agree, there is a need for probationary periods because an interview (or two) is not enough to ascertain whether someone is the right person for the job or not. But once the employer has had a chance to evaluate the employee during probation, there's no reason why the employee shouldn't have full employment protection.

I accept that an employer needs to ascertain that someone can perform their role, but I do not see that it should take two years (or even a year) for them to do so unless they are singularly stupid. If there are fair reasons to dismiss then it should not be beyond the wit of an employer to be able to comply with a fair process whether someone has four months service or four years service - the requirements are not that onerous!

You are backwards engineering your argument to prove a point that was wrong in the first place. You did not specify a probationary period of less than a month - you said that a contract can be terminated without notice during the probationary period, which is not true. It may have escaped your attention, but not everyone works for McDonalds. Probationary periods, which, as I have explained at great length, do not exist in law, can be several months long. The length of them is determined by the employer, and solely by the employer.

McDonalds probably don't expect people to last as long as 3 months anyway! I once worked for McD's when I was young and there was no mention of a probationary period, however, that was in the US not the UK.

Most probation periods tend to be 3 months (I'm referring to office work), a financial institution I once worked for had 6 months. The notice period was one week either side during the period. I know someone who got 'rejected' from 2 different jobs at the end of the period, but he was given written notice of their intentions beforehand.

An alternative to probationary periods which is very common in certain industries, particularly in the City, is the temp-to-perm arrangement, where you start as a temp for a set period of time (usually 3 to 6 months) and, if they think you're suitable, they offer a permanent job, but there's no contractual obligation to do so. It's also not unusual to start as a temp and be offered a perm job later on even when this wasn't stipulated from the start. I had a job where I was a temp for nine months before going perm, another one started with half a day's work!

Some companies keep people as 'temps' on an indefinite basis. Once place I used to work for had 'temps' who had been there for up to 10-12years. 4 or 5 years wasn't uncommon.

[Eloise01]

Re: Disciplinary for unauthorised absence

Temporary and permanent also have no meaning in employment law, if you are interested. It used to do, but that is now in the very dim and distant past when I first entered the profession. Neither does fixed term contract mean anything much either. Continuous service is the yardstick in employment, not "contract type". This is as it should be. Now we just need to deal with the length of that - which was once six months, which I think is a reasonably fair and equitable period.

The other obvious major iniquity is Crown appointments, which have been somewhat curtailed, but not sufficiently.

[Eloise01]

Re: Disciplinary for unauthorised absence

Ps. US employers don't need probationary periods. They have excellent (if you are an employer) employment laws! Broadly, they consist of "unless you belong to a very powerful union, and what's the chance of that, we can sack you when we want".

[FlamingParrot]

Re: Disciplinary for unauthorised absence

Temporary and permanent also have no meaning in employment law, if you are interested. It used to do, but that is now in the very dim and distant past when I first entered the profession. Neither does fixed term contract mean anything much either. Continuous service is the yardstick in employment, not "contract type". This is as it should be. Now we just need to deal with the length of that - which was once six months, which I think is a reasonably fair and equitable period.

The other obvious major iniquity is Crown appointments, which have been somewhat curtailed, but not sufficiently.

I AM interested, even though it probably doesn't apply to me because I invoice as a ltd co (do correct me if I'm wrong). :noidea:

I remember in 2004 all those City employers who had been keeping temps for years started applying the '52 week rule' where they got rid of them before they'd been there for a year, presumably to stop them from accruing rights for continuous service, even though they were never employed by the company they worked for but through an agency. Presumably now they can keep them for up to 2 years.

Does that mean that any 'temp' who's been somewhere for 2 years or more has full employment rights? Was there a change in legislation around 2003/04 when they started applying that rule?

[FlamingParrot]

Re: Disciplinary for unauthorised absence

Ps. US employers don't need probationary periods. They have excellent (if you are an employer) employment laws! Broadly, they consist of "unless you belong to a very powerful union, and what's the chance of that, we can sack you when we want".

Commonly known as 'employment at will', don't think there's a UK equivalent (maybe when you invoice as a ltd co.)

[jon1965]

Re: Disciplinary for unauthorised absence

Ok so maybe my choice of words was poor and I should have said may instead of can. And I did not state that everyone worked for McDonalds so there is no need to be patronising.

I would refer you to page 3 of the Acas code where it says
A failure to follow the Code does not, in itself, make a person or organisationliable to proceedings. However, employment tribunals will take the Code into
account when considering relevant cases. Tribunals will also be able to adjust
any awards made in relevant cases by up to 25 per cent for unreasonable
failure to comply with any provision of the Code. This means that if the
tribunal feels that an employer has unreasonably failed to follow the guidance
set out in the Code they can increase any award they have made by up to
25 per cent. Conversely, if they feel an employee has unreasonably failed to
follow the guidance set out in the code they can reduce any award they have
made by up to 25 per cent

There was no backward engineering as you suggest just a poor choice of words just as your choice of dim and distant past are a poor choice of words because to a huge percentage of the population 2003/4 does not seem that long ago

[Eloise01]

Re: Disciplinary for unauthorised absence

I AM interested, even though it probably doesn't apply to me because I invoice as a ltd co (do correct me if I'm wrong). :noidea:

I remember in 2004 all those City employers who had been keeping temps for years started applying the '52 week rule' where they got rid of them before they'd been there for a year, presumably to stop them from accruing rights for continuous service, even though they were never employed by the company they worked for but through an agency. Presumably now they can keep them for up to 2 years.

Does that mean that any 'temp' who's been somewhere for 2 years or more has full employment rights? Was there a change in legislation around 2003/04 when they started applying that rule?

OK. This is actually a very interesting area - do let me know when your eyes glaze over (the usual response :tinysmile_grin_t: )

Invoicing as a limited company - i.e. sub-contractor or consultant - does not necessarily mean that you are not an employee. It means that you think you aren't one. You may be correct, but you also may not be. Employment law applies a number of tests, similar to but not exactly the same as the ones used by HMRC, to determine employment status, most of which are related to control. If the employer can control when and where you do the work, who can do the work (i.e. it must be you and nobody else), and such things, then the relationship may actually be an employment relationship in law. This makes perfect sense if you think about it - otherwise everyone would be self-employed! According to employers anyway!

It is also not quite as simple as saying that you are an emploee or self-employed - there is another category too, the worker. Workers accrue some employment rights, but not others. A typical example of a worker is someone on a zero-hours contract, who is offered work but not obliged to take it - they are entitled, for example, to holiday pay, but not to redundancy rights.

So your taxation status is not directly related to your employment status - the two things may be different.

Then there is "temps". There are again two categories here, although in truth the latter category are not "temps" - that a wordly concept and not a legal one. Temporary employees employed directly by an employer accrue rights in the same way, and at the same time as permanant employees (who are not really permanent - they can resign, be dismissed, retire etc., so permanant is another notion that doesn't exist in law). The "temps" you are referring to are not employees in this situation at all - or not of the place at which they perform work. So they do not accrue employment rights in their workplace (mostly, I will come back to this), but they may accrue employment rights with the agency. That will no doubt explain to you why, if you didn't already know this, agencies may be keen to try to force people into umbrella companies and other such arrangements - to try to establish that they are self-employed and not employees. The contract, in this case, for work, is a contract for services between the workplace and the agency - any contract between the worker and the agency is between them.

However, in 2010 the Agency Workers Regulations came into force, and these now accord "temps" some very limited rights in relation to their workplace conditions, which you can find out more about here https://www.gov.uk/government/upload...s-guidance.pdf (saves me typing it all!). Agencies / clients of agencies can avoid the equal pay aspect of this (but only the equal pay one), but only by using something called the Swedish Derogation, which entails the agency actually taking the workers on as employees and meeting certain basic conditions which includes paying workers between assignments. As well, of course, as establishing their rights in other areas of employment law as bone fide employees.

This is a very positive move (another of those nasty things Europe forced on us!) because it begins to establish rights and employment status for a large group of workers who have been largely excluded from various protections. It is still not enough, in my opinion, but it is a start. The barrier to progress will be, in my view, the non-unionised position of agency workers. What people fail to recognise about employment law is that the actual statutes are very little more than a foundation. More than any other area of law (with the possible exception of family law), statututes simply cannot fully cater for what is, in the end, not a matter of "right and wrong" but the regulation of human relationships. So employment law is based on statute and built up by case law, which interprets what the statute means, or in some cases should mean, in a specific set of circumstances. Case law is very expensive to establish. And there is only so much pro-bono work that lawyers can do, and no legal aid (or not enough to speak of and make it worthwhile). So the primary funders of test cases are actually trades unions. Since few agency workers are trades union members, then the likelihood of building up much case law is diminished and progress is not made.

Does that, briefly, answer the question?

[Eloise01]

Re: Disciplinary for unauthorised absence

Ok so maybe my choice of words was poor and I should have said may instead of can. And I did not state that everyone worked for McDonalds so there is no need to be patronising.

I would refer you to page 3 of the Acas code where it says
A failure to follow the Code does not, in itself, make a person or organisationliable to proceedings. However, employment tribunals will take the Code into
account when considering relevant cases. Tribunals will also be able to adjust
any awards made in relevant cases by up to 25 per cent for unreasonable
failure to comply with any provision of the Code. This means that if the
tribunal feels that an employer has unreasonably failed to follow the guidance
set out in the Code they can increase any award they have made by up to
25 per cent. Conversely, if they feel an employee has unreasonably failed to
follow the guidance set out in the code they can reduce any award they have
made by up to 25 per cent

There was no backward engineering as you suggest just a poor choice of words just as your choice of dim and distant past are a poor choice of words because to a huge percentage of the population 2003/4 does not seem that long ago

You appear to insist on ignoring the fact that the code does not state that an investigation must take place. It is therefore entirely irrelevant what it says on page three because the guidance does not require an investigation! If you wish to carry on telling people that this is a legal fact when it is not, then be my guest, but I will continue to inform people that they should not rely on incorrect facts as legal facts. This debate is now at an end. On my side anyway. You may continue to be wrong for as long as you like.

[FlamingParrot]

Re: Disciplinary for unauthorised absence

OK. This is actually a very interesting area - do let me know when your eyes glaze over (the usual response :tinysmile_grin_t: )

Thanks for this, it is very interesting indeed, and not just for me, I know quite a few people who work as 'temps'.

Invoicing as a limited company - i.e. sub-contractor or consultant - does not necessarily mean that you are not an employee. It means that you think you aren't one. You may be correct, but you also may not be. Employment law applies a number of tests, similar to but not exactly the same as the ones used by HMRC, to determine employment status, most of which are related to control. If the employer can control when and where you do the work, who can do the work (i.e. it must be you and nobody else), and such things, then the relationship may actually be an employment relationship in law. This makes perfect sense if you think about it - otherwise everyone would be self-employed! According to employers anyway!

It is also not quite as simple as saying that you are an emploee or self-employed - there is another category too, the worker. Workers accrue some employment rights, but not others. A typical example of a worker is someone on a zero-hours contract, who is offered work but not obliged to take it - they are entitled, for example, to holiday pay, but not to redundancy rights.

So your taxation status is not directly related to your employment status - the two things may be different.

Does that mean once I've worked for them for two years (just a few months to go) I *could*, for example, claim unfair dismissal if they let me go, even though I haven't got a contract of employment? As long as the criteria you mention above is met, which it has been.

The "temps" you are referring to are not employees in this situation at all - or not of the place at which they perform work. So they do not accrue employment rights in their workplace (mostly, I will come back to this), but they may accrue employment rights with the agency. That will no doubt explain to you why, if you didn't already know this, agencies may be keen to try to force people into umbrella companies and other such arrangements - to try to establish that they are self-employed and not employees. The contract, in this case, for work, is a contract for services between the workplace and the agency - any contract between the worker and the agency is between them.

It's a little strange because it was the agency's clients rather than the agencies themselves who started getting rid of 'temps' after 50 or so weeks, even when it caused problems in the relevant departments, for example, IT or marketing were very happy with their 'temps' but a company-wide policy was established where they were not to be kept longer than that. Perhaps the regulations were misinterpreted, although I'm talking about very large corporations here who should be able to keep abreast of legal issues. If the employment rights were accrued with the agency, why were the companies concerned about this? An agency 'temp' who had worked for 4 years at a financial institution I was working for attempted to take action against them when her employment was terminated in 2001 and the company offered her a good
pay off to stop her!

However, in 2010 the Agency Workers Regulations came into force, and these now accord "temps" some very limited rights in relation to their workplace conditions, which you can find out more about here https://www.gov.uk/government/upload...s-guidance.pdf (saves me typing it all!). Agencies / clients of agencies can avoid the equal pay aspect of this (but only the equal pay one), but only by using something called the Swedish Derogation, which entails the agency actually taking the workers on as employees and meeting certain basic conditions which includes paying workers between assignments. As well, of course, as establishing their rights in other areas of employment law as bone fide employees.

If the regulations only came into force in 2010, were there some other regulations in force in 2001-2004 that would explain the above?

This is a very positive move (another of those nasty things Europe forced on us!) because it begins to establish rights and employment status for a large group of workers who have been largely excluded from various protections. It is still not enough, in my opinion, but it is a start. The barrier to progress will be, in my view, the non-unionised position of agency workers.

A lot of non-agency workers are not unionised either, in all the places I've worked in my long life, there was never any unions involved.

Does that, briefly, answer the question?

It does indeed, although it raised a few more questions as you can see. It's a very interesting subject that affects thousands, if not millions.

[jon1965]

Re: Disciplinary for unauthorised absence

As may you
I had 45 years of discussing with someone who was always right so I am very very used to it. That was usually his retort when he knew he was on a loser :lol:

However, and this is my last word on the matter, in order to be consistent and fair some form of investigation should be involved. This does not have to be a meeting as such but to identify the reasons for the incident.

In my previous employer , any absence was followed up by a return to work interview and although several managers were under the impression that exceeding the companies guidelines on sickness led to an automatic warning this was not the case

[bluebottle]

Re: Disciplinary for unauthorised absence

Temporary and permanent also have no meaning in employment law, if you are interested. It used to do, but that is now in the very dim and distant past when I first entered the profession. Neither does fixed term contract mean anything much either. Continuous service is the yardstick in employment, not "contract type". This is as it should be. Now we just need to deal with the length of that - which was once six months, which I think is a reasonably fair and equitable period.

The other obvious major iniquity is Crown appointments, which have been somewhat curtailed, but not sufficiently.

Crown Appointments, e.g. Civil Service, Police Officers, Armed Forces, are subject to legislation which as well as running alongside Employment Law, can, in some circumstances, supercede it. I am afraid your desire to see Crown Appointments brought down to the same level as ordinary employment contracts just ain't going to happen, no matter how much and how hard vested interests lobby the politicians.

[Eloise01]

Re: Disciplinary for unauthorised absence

Thanks for this, it is very interesting indeed, and not just for me, I know quite a few people who work as 'temps'.

Does that mean once I've worked for them for two years (just a few months to go) I *could*, for example, claim unfair dismissal if they let me go, even though I haven't got a contract of employment? As long as the criteria you mention above is met, which it has been.
It could indeed mean that. The full details of the working relationship and the contractual terms would need to be examined, but there are many instances of where a tribunal has ruled someone an employee when the employer has fallen foul of the test. And actually - you may already be able to as the two years was only introduced for people starting employment since April last year - so for you it would be one year. If you are interested in examining this further we could perhaps do so on a new thread.

It's a little strange because it was the agency's clients rather than the agencies themselves who started getting rid of 'temps' after 50 or so weeks, even when it caused problems in the relevant departments, for example, IT or marketing were very happy with their 'temps' but a company-wide policy was established where they were not to be kept longer than that. Perhaps the regulations were misinterpreted, although I'm talking about very large corporations here who should be able to keep abreast of legal issues. If the employment rights were accrued with the agency, why were the companies concerned about this? An agency 'temp' who had worked for 4 years at a financial institution I was working for attempted to take action against them when her employment was terminated in 2001 and the company offered her a good pay off to stop her! I can't explain that. The fact that agency workers do not accrue rights as employees of the client has long been well established. Perhaps, like some other people around here, they are unable to read and simply choose to believe what they think is the case??? One possibility is that the staff were provided through an agency as temps, but paid directly by the company. This would make them employees of the company, with the provision of staff being the contract between the agency and the company - this does happen. Or even that this had previously happened and the policy outlasted the practice - wouldn't be the first time I've seena policy hang around for years after everyone has forgotten what it was for!


If the regulations only came into force in 2010, were there some other regulations in force in 2001-2004 that would explain the above? No. These were the first regulations relating to the rights of agency workers - and the government fought hard to resist having to introduce them.


A lot of non-agency workers are not unionised either, in all the places I've worked in my long life, there was never any unions involved.
It does indeed, although it raised a few more questions as you can see. It's a very interesting subject that affects thousands, if not millions.

Yes I realise that another thing in my dim and distant past is the days when unionisation of workplaces was much more common.

[Eloise01]

Re: Disciplinary for unauthorised absence

Crown Appointments, e.g. Civil Service, Police Officers, Armed Forces, are subject to legislation which as well as running alongside Employment Law, can, in some circumstances, supercede it. I am afraid your desire to see Crown Appointments brought down to the same level as ordinary employment contracts just ain't going to happen, no matter how much and how hard vested interests lobby the politicians.

I agree that there is a special case to be made for the Police Force and Armed Forces. However the bulk of Crown appointments are many thousands of low paid workers who make up huge swathes of the bureaucracy of government departments - and would be greatly pleased to be "brought down to the same level" as the lowly employees who can claim unfair dismissal and redundancy payments - which many of these people cannot. Not everyone is Sir Humphrey...

[FlamingParrot]

Re: Disciplinary for unauthorised absence

It could indeed mean that. The full details of the working relationship and the contractual terms would need to be examined, but there are many instances of where a tribunal has ruled someone an employee when the employer has fallen foul of the test. And actually - you may already be able to as the two years was only introduced for people starting employment since April last year - so for you it would be one year. If you are interested in examining this further we could perhaps do so on a new thread.

OK, I'll start a new thread there.

I can't explain that. The fact that agency workers do not accrue rights as employees of the client has long been well established. Perhaps, like some other people around here, they are unable to read and simply choose to believe what they think is the case??? One possibility is that the staff were provided through an agency as temps, but paid directly by the company. This would make them employees of the company, with the provision of staff being the contract between the agency and the company - this does happen. Or even that this had previously happened and the policy outlasted the practice - wouldn't be the first time I've seena policy hang around for years after everyone has forgotten what it was for!

This policy was adopted by a number of different companies, including one large investment bank I was working for at the time as an agency temp as well, the temps were all paid through the agencies and not the companies, those companies like to outsource everything and the last thing they would do is take the temp payroll in-house. In my case, I was using an umbrella company, but only because a friend of mine recommended it as a tax-efficient vehicle. I could probably have stayed more than 52 weeks in those circumstances as I was 'officially' 'employed' by a company in Gibraltar (that's what my payslip said), but I left after 5 or 6 months to go to Spain.

They were all very concerned about temps acquiring employment rights at the time (2004). Surprisingly, not all companies agreed to this type of arrangement, some didn't want limited companies and some didn't want umbrella companies to be used. :confused2: