ACAS has developed and publishes a code of practice that sets out principles for employers and employees to follow when dealing with employment related disciplinary and grievance matters.
It is not mandatory to follow the code. However, employment tribunals will make assessments on whether the steps set out by the code were broadly followed and may adjust awards upwards if there was unreasonable failure by the employer to do so.
It follows that employers and employees should aim to resolve disputes outside of tribunals, such as by using an alternative dispute resolution practice such as mediation. Recourse to an employment tribunal should be a last resort.
Making disciplinary and grievance procedures fair and transparent
The code promotes fairness and transparency through the development by the business of rules and procedures for handling disciplinary and grievance situations.
A business should set the rules down in writing. They should be specific and clear and be agreed wherever applicable with trade unions or employee representatives. It is also important to ensure that employees and managers understand how they are to be used.
Whenever a formal process is being followed it is important to deal with issues fairly. There are a number of elements to this:
- Issues should be addressed as quickly as possible. For example, meetings and decisions should not be unduly delayed.
- Employers should act consistently and ensure that similar cases are treated similarly.
- Employers should make appropriate investigations as soon as possible to establish the facts of a case.
- A grievance or disciplinary meeting should, so far as possible, be conducted by a manager who was not involved in the matter giving rise to the dispute.
- Where the employer is raising a performance problem the immediate manager would be involved.
- An employee should be informed of the issues behind the problem and have an opportunity to put a case in response before any decisions are made.
- An employee has the right to be accompanied by another employee of his or her choice at any disciplinary or grievance meeting.
- An employee should be allowed to appeal against any formal decision made.
It is good practice to keep written records during disciplinary and grievance cases. A written record should certainly be kept of the outcome.
Disciplinary problems: step by step
Establish the facts of each case
It is important to investigate potential disciplinary matters promptly to establish the facts of the case before memories of events fade.
If there is a purely investigatory meeting this will not by itself result in any disciplinary action. However, it should be made clear to the employee that the investigation may lead to disciplinary charges being raised. The statutory right of accompaniment will not apply, but it is good practice to allow the employee to be accompanied.
In those cases where a period of suspension with pay is considered necessary, this period should be kept as brief as possible.
Inform the employee of the problem
If, in light of the investigation, it is decided that there is a disciplinary case to answer, the employee should be notified of this in writing.
This notification should contain sufficient information to let the employee know what the alleged problem is and its possible consequences.
Hold a meeting with the employee to discuss the problem
Before holding a disciplinary meeting ensure that the employee has been notified of the nature of the problem and the basis of the allegations against them. The meeting should then be held promptly whilst allowing the employee reasonable time to prepare their case.
At the meeting allow the employee to set out their case and answer any allegations that have been made.
Allow the employee to be accompanied at the meeting
Workers have a statutory right to be accompanied by a companion where the disciplinary meeting could result in:
- a formal warning being issued
- the taking of some other disciplinary action
- the confirmation of a warning or some other disciplinary action (appeal hearings)
The chosen companion could be a fellow worker, a lay trade union official, or an official employed by a trade union. A lay official must have been certified by their union as being able to accompany a worker.
To exercise the right to be accompanied workers must first make a reasonable request.
Decide on appropriate action
Following the meeting decide whether or not disciplinary or any other action is justified and inform the employee accordingly.
Where the employee is found guilty of misconduct or to be performing poorly they should be given a written warning. A further act of misconduct or failure to improve performance within a set period would normally result in a final written warning.
If an employee’s first misconduct or unsatisfactory performance is sufficiently serious, it may be appropriate to move directly to a final written warning. In small organisations this might occur where the employee’s actions have had, or are liable to have, a serious or harmful impact on the organisation.
A first or final written warning should set out the nature of the misconduct or poor performance, the change in behaviour or improvement in performance required (with timescale). The employee should be told of a specified period after which the warning will be disregarded.
The employee should be informed that a further act of misconduct, or failure to improve performance, within the set period following a final warning, may result in dismissal or some other penalty such as demotion or loss of seniority.
Some acts, termed gross misconduct, are so serious that they may call for summary dismissal for a first offence. But a fair disciplinary process, including a right of appeal, should always be followed, before deciding whether gross misconduct has occurred.
Disciplinary rules should give examples of acts which the employer regards as acts of gross misconduct. These may vary according to the nature of the organisation and what it does, but might include things such as theft or fraud, physical violence or serious insubordination.
Provide employees with an opportunity to appeal
Appeals should be heard promptly and ideally at an agreed time and place. Wherever possible the appeal should be dealt with by a manager who is more senior than the manager who conducted the first hearing.
Workers have a statutory right to be accompanied at appeal hearings.
Employees should be informed in writing of the results of the appeal hearing as soon as possible.
If it is necessary to discipline a trade union lay official the normal disciplinary procedure should be followed. Depending on the circumstances, however, it is advisable to discuss the matter at an early stage with an official employed by the union, after obtaining the employee’s agreement.
If an employee is charged with, or convicted of a criminal offence this is not in itself reason for disciplinary action. Consideration needs to be given to the effect of the charge or conviction on the employee’s ability to do their job.
Grievance matters: step by step
Let the employer know the nature of the grievance
This is best done in writing and to the employee’s line manager.
Where the grievance is against the line manager the employee should approach another manager in the organisation if possible.
Hold a meeting with the employee to discuss the grievance
Arrange for a formal meeting to be held promptly after a grievance is received. Allow the employee to explain their grievance and how they think it should be resolved.
Allow the employee to be accompanied at the meeting
Workers have a statutory right to be accompanied by a companion at a grievance meeting which deals with a complaint about a duty owed by the employer to the worker. So this would apply where the complaint is, for example, that the employer is not honouring the worker’s contract, or is in breach of legislation.
The chosen companion may be a fellow worker a lay trade union official or an official employed by a trade union. A lay official must have been certified by their union as being able to accompany a worker. To exercise the right to be accompanied a worker must first make a reasonable request.
Decide on appropriate action
Following the meeting decide on what action, if any, to take. Decisions should be communicated to the employee without undue delay and, where appropriate, should set out what action the employer intends to take to resolve the grievance.
Allow the employee to take the grievance further if not resolved
If an employee feels that their grievance has not been satisfactorily dealt with they should be allowed to take the matter further on appeal. Appeals should be heard promptly and at an agreed time and place which should be notified to the employee.
Where possible the appeal should be dealt with by a manager who is more senior than the manager who dealt with the first hearing.
Workers have a statutory right to be accompanied at any such appeal hearing.
It is good practice to consider dealing separately with issues involving bullying, harassment or whistle blowing.
Net Lawman offers a number of employment policies that will help you set out procedures and rules within the workplace.