Discipline and Grievanceby Kate Russell
In a nutshell
1. The legal framework – discipline and grievance
The statistics provided by ACAS suggest that almost half of the claims made to employment tribunal each year are for unfair dismissal and that ex-employees win just over 40 per cent of those claims. In April 2009 the statutory dispute resolution regulations were repealed and immediately replaced by the ACAS Code of Practice 1 (updated 2015) and accompanying non-statutory Guidance.
- Workers have a statutory right to be accompanied by a companion at a formal discipline or grievance meeting.
- There’s no statutory right to be accompanied by a legal advisor; recent cases where the court agreed that the employee’s right to a fair hearing was compromised by the employer’s denial of legal representation have been called into question by the Supreme Court in of R (on the application of G) v Governors of X School and Y City Council .
- Where misconduct is confirmed or the employee is found to be performing unsatisfactorily, it is usual to give the employee a warning. A further act of misconduct or failure to improve performance within a set period would normally result in a final warning.
- A decision to dismiss should only be taken by a manager who has the authority to do so.
- Disciplinary rules should give examples of acts which the employer regards as acts of gross misconduct.
2. The reasonable employer
The test is whether a reasonable employer in the same employment situation would also have done the same as you.
- Be fair and consistent in your approach.
- Don’t rush into a decision. Be considered and reflective.
- Be transparent in your actions and decisions.
- Put yourself in the other person’s shoes.
- Take all relevant factors into account.
- Take advice and discuss the issues with the employee.
- Consider all possible alternatives.
- Be able to justify your actions.
3. Standards and rules
The single best way to reduce disciplinary problems is to set clear standards. The Advisory Conciliation and Arbitration Service (ACAS) has issued a Code of Practice on handling discipline at work, which employment tribunals must have regard to when considering the facts. If an employee falls short of the required standard, it is virtually impossible to bring about an improvement in his performance or conduct unless the following elements are present.
- The organisation has a clear set of standards.
- The standards have been communicated to all workers.
- Factual evidence is available which indicates that conduct or performance is below the accepted standard.
- There are clear rules and procedures which outline to all employees how the issue will be dealt with.
- Where possible, the standards are specific, measurable, achievable, realistic and time-bound (SMART).
4. Capability and conduct
Capability and conduct should be treated separately. Where your employee already has a warning for misconduct, and then demonstrates a lack of capability, you should issue him with a first warning for the capability matter, quite separate from the misconduct. Dismissal on grounds of capability will be for one of three reasons:
- Lack of or loss of an essential qualification to do the job
- Lack of ability or skill – this can be repeated minor incompetence or one serious act of incompetence (poor performance)
- Lack of capability because of ill health.
Examples of misconduct:
- Poor attendance.
Examples of gross misconduct:
- Fighting, abusive or intimidating behaviour
- Consumption of alcohol while on duty.
5. First steps
You should not dismiss for a first offence other than gross misconduct. Have one or two informal discussions first. If there is no improvement at that point, move to the formal procedure. A diary note should be kept in the supervisor’s file, but apart from that an informal discussion is kept low key:
- No notice of meeting and no prior information provided
- No formal warning – only helpful advice
- No appeal process
- No set duration or review period.
6. Before the disciplinary interview
A rigorous investigation should be carried out, preferably by someone other than the person likely to chair any disciplinary hearing. In relation to conduct, guidance is given in a three-part test laid down in British Home Stores v Burchill :
- Do you have a reasonable belief that the employee is guilty?
- Do you have reasonable grounds for that belief?
- Have you carried out as much investigation as is reasonable in the circumstances?
However, the burden of proof may have shifted slightly following the decision of the Court of Appeal in Salford Royal NHS Foundation Trust v Roldan .
Witness statements should be written in the first person, be clear, include all relevant details and be free from hearsay. In the ideal world, witnesses will be clearly identified. Where there are real concerns about intimidation or reprisals, it is possible to allow witnesses to give evidence anonymously.
In cases of alleged gross misconduct, consider suspending the employee from work while the facts are fully investigated. You might take action to suspend if there is a risk of harm to person, property or the business. Suspension must be with full pay.
Before a disciplinary hearing
- Write to the employee with all the necessary information
- Remind him of his right to be accompanied
- Book a suitable room and arrange for someone to take notes
- Arrange for any special needs to be met
- Collate the evidence, prepare questions and consider possible answers
7. Handling disciplinary interviews
A disciplinary hearing should be a discussion of the facts, not an argument about them.
- Allow the employee to reply to the allegations.
- Take representations from the companion, if he wishes to make them.
- Once you have heard all the evidence, adjourn.
- If you decide to issue some form of disciplinary penalty, confirm your decision in writing and tell the employee about the appeals process.
- If the employee doesn’t attend the hearing, either through sickness or for some other reason, write to him rescheduling the date for the meeting.
- If he fails to attend without good reason on the final occasion, hold the disciplinary hearing in his absence.
8. Warnings – possible pitfalls
In dismissal cases, there is a legal concept of a band of reasonableness, within which one employer might reasonably take one view, while another might, quite reasonably, take a different view. You must keep within this band.
- A final warning should be a final warning – don’t give final, final warnings or otherwise ignore your procedures.
- Nobody should be dismissed for a first offence, unless it’s an offence that constitutes gross misconduct.
- Gross misconduct should be identified and listed in your disciplinary procedure.
- You must not use an expired warning to give a heavier sanction than you otherwise would.
9. Protected conversations
The intended effect of protected conversations is that employers and employees will not be permitted to refer in a court or employment tribunal to pre-termination negotiations, even if there is no pre-existing dispute between the parties, and so can talk freely about the reasons for wanting to end the employment without risk of a claim.
Protected conversations are not the universal panacea so proceed with caution. There are limitations.
The ACAS Code recommends that you provide an opportunity to appeal against a formal disciplinary penalty up to and including dismissal.
- The appeal period should be specified – five working days is recommended.
- Appeals should be dealt with quickly.
- The employee should be advised of his right to be accompanied at the appeal hearing.
- The appeal should be heard by a more senior person.
It is an employee’s right to air a genuine grievance. Many grievances can be dealt with informally, but you should also have a formal procedure, described in a written document.
- In practical terms, three to four procedural stages are the most appropriate.
- At each stage, the reviewer is likely to conduct an information search of policies, procedures, practices, collective agreements, operating instructions, interviews and so on.
- There are usually three levels for hearing grievances – supervisors, departmental managers and senior managers.
- Make sure that grievance procedures are drafted in such a way as to allow an initial assessment by the employer before significant resources are allocated to deal with a grievance.