Discipline and Grievance

by Kate Russell

The legal framework – discipline and grievance

Applications to employment tribunal rose sharply from the end of the 1990s, declined again when tribunal fees were introduced and have increased steeply since the repeal of the fee structure at the end of 2017.

The compensatory award is the element designed to put the employee back in the same position he would have been in if he had with the new figures coming into force on on 1st April. For current compensation figures, see Statutory rates.

The general rule is that employees have to have two years’ service qualification in order to gain the protection of the unfair dismissal legislation. There are a significant number of exceptions where an employee can complain of unfair dismissal from day one if the dismissal is because of or related to the statutory exception.

ACAS Code

The statutory ACAS Code of Practice 1 is intended to provide basic practical guidance to employers, employees and their companions and sets out principles for handling disciplinary and grievance situations in the workplace. The code does not apply to dismissals due to redundancy, some other substantial reason or the non-renewal of fixed term contracts on their expiry.

The code is the benchmark of best practice for employment tribunals and they are required to have regard to it in considering claims.

A minor failure to follow procedure does not automatically make a dismissal unfair. There is provision to allow an adjustment in compensation, up or down, by up to 25 per cent for unreasonable failure by either party to comply with any provision of the code. So an employer who has unreasonably failed to follow its procedures may face an increase in the compensation it has to pay by up to 25 per cent. Conversely, if an employee has unreasonably failed to follow the guidance set out in the code, the tribunal can reduce any award they have made by up to 25 per cent.

The code sets out the basic requirements of fairness that will be applicable in most cases; it is intended to provide the standard of reasonable behaviour in most instances.

The accompanying non-statutory guide contains sample disciplinary and grievance procedures.

Organisations may wish to consider dealing with issues involving bullying, harassment or whistle blowing under a separate procedure.

Whenever a disciplinary or grievance process is being followed, it is important to deal with issues fairly. The ACAS Code sets out a number of elements which constitute fairness.

Employers and employees should:

  • raise and deal with issues promptly and should not unreasonably delay meetings, decisions or confirmation of those decisions
  • act consistently

In addition, employers should:

  • carry out any necessary investigations, to establish the facts of the case
  • inform employees of the basis of the problem and give them an opportunity to put their case in response before any decisions are made
  • allow employees to be accompanied at any formal disciplinary or grievance meeting
  • allow an employee to appeal against any formal decision made.

Where some kind of formal action is needed, the decision about what is reasonable or justified will depend on the facts in each case. Employment tribunals will take the size and resources of an employer into account when reaching their decisions.

Investigations of potential disciplinary matters should be carried out as soon as reasonably possible to establish the facts. In some cases, this will require the holding of an investigatory meeting with the employee before proceeding to any disciplinary hearing. In others, the investigatory stage will be the collation of evidence by the employer for use at any disciplinary hearing. An investigatory meeting should not by itself result in any disciplinary action.

Small and medium sized enterprises (SMEs) are subject to the same rules as large organisations. SMEs tend to find the discipline process long, complicated and onerous. But it still applies to them. Here’s a case, featuring several common mistakes.

 

Example

Mrs Cassell joined Cracker Jacks Day Nursery as a nursery manager in 2011. In August 2015, she started maternity leave. Soon after that, the nursery owner, Mrs Lewis, received a variety of allegations against Mrs Cassell, accusing her of bullying staff members. Mrs Lewis asked a former HR colleague to investigate. His report concluded that Mrs Cassell had indeed bullied and harassed members of staff.

On 12 October, Mrs Lewis sent Mrs Cassell a text, stating that serious allegations had been raised against her. She invited her to an ‘investigation meeting’ the following day. Mrs Cassell attended but was denied the presence of a companion. At the meeting, Mrs Lewis dismissed her. Two days later, Mrs Lewis wrote to Mrs Cassell, confirming her dismissal on the grounds of gross misconduct.

Mrs Cassell appealed. Mrs Lewis instructed an independent HR consultant to conduct the appeal with Mr Lee Corless, a friend of Mrs Lewis, who attended as note-taker.

The appeal meeting took place on 15 January 2016. Mrs Lewis had instructed Mr Corless to record the meeting. He did so covertly. The consultant subsequently withdrew from the appeal process, which was continued by Mr Corless.

On 26 January, Mr Corless sent his meeting notes to Mrs Cassell. He omitted to mention that he had also made an audio recording. Later, he invited her to a new appeal meeting. Mrs Cassell refused to attend, claiming that she had no confidence in his neutrality. On 26 February, Mr Corless wrote to Mrs Cassell rejecting her appeal.

Mrs Cassell complained that the dismissal was unfair. The Tribunal considered whether:

  • there had been a potentially fair reason for the dismissal;
  • the employer had acted reasonably in treating the misconduct as sufficient reason for dismissal
  • the manner of the investigation and the dismissal of Mrs Cassell had been reasonable.

The Tribunal found that the employer had significantly breached the ACAS Code

  • It had given Mrs Cassell less than 24 hours’ notice of the investigation meeting.
  • It failed to tell her, in advance, the purpose of the meeting.
  • It neglected to provide anything in writing prior to the meeting.
  • It provided no written account of the allegations - a particular concern, as an investigation report had been prepared and could easily have been forwarded to her.
  • The meeting on 13 October had been described as an investigation meeting. In fact, it evolved into a disciplinary hearing.
  • Mrs Cassell wasn’t allowed a companion. The dismissal letter had stated that Mrs Cassell’s conduct at the meeting was one of the reasons for her dismissal. The Tribunal reviewed the meeting transcript, concluding that Mrs Cassell’s conduct was not, in fact, inappropriate.
  • An independent person was appointed to compile the investigation report. However, Mrs Lewis was extensively consulted in its preparation. She went on to conduct the investigation/disciplinary meeting herself and to dismiss Mrs Cassell. This was inappropriate, as one of the allegations was that Mrs Cassell had turned staff against Mrs Lewis.
  • The appeal process was unfair and tainted by dishonesty.
  • Three witness statements that were made by staff members were not provided to Mrs Cassell until two days prior to the appeal meeting. There were significant disparities between what was said at the initial investigation meetings, and the content of their written witness statements.
  • The employer did not reveal to Mrs Cassell that it had made an audio-recording of the meeting.
  • The allegations were based on unsubstantiated gossip, grumbles, distortions and untruths.

The Tribunal found that the Nursery had failed to conduct sufficient investigations or produced reliable evidence to justify its decision to dismiss Mrs. Cassell. The dismissal was therefore outside the range of reasonable responses.

Where an employer considers that it is necessary to remove an employee from the workplace while the investigation is taking place, alternatives to suspension should be considered. If precautionary suspension is necessary, the period of suspension should be kept under review, be as brief as possible, and it should be made clear that this suspension is not considered a disciplinary action.

Suspension is usually used in cases of gross misconduct but not confined to that. You would consider suspension where keeping the employee in the workplace puts:

  • the employee himself at risk;
  • other people at risk;
  • the business at risk

Suspension must be with full pay and should only be used where it is really necessary to do so. This may involve cases where any of the activities listed below are suspected:

  • Physical violence
  • Harassment (sex, race, disability, age etc)
  • Fighting
  • Fraud or theft.

When suspending an employee, make it clear that this is part of the investigation process and that he is under a duty to make himself available to assist in the investigation during all normal working hours. The employee remains an employee and is therefore subject to all the usual employment rules except the duty to attend for work. Staff who are suspended still have the right to be accompanied at a formal hearing.

It is common for employers to suspend automatically if there is an allegation of gross misconduct. However, such action must be carefully thought through and suspension should be the last resort, in other words where there is no other option.

Example

In 2000, the Court of Appeal awarded a residential care worker substantial damages from her employers following an inappropriate suspension from work pending an investigation into allegations of abuse.

The investigation concerned a very disturbed child who had learning difficulties and a history of family abuse. During therapy sessions, the child had made remarks which could have been interpreted as allegations of abuse. As a result, an investigation was carried out and G was suspended for the duration. There is provision in the Children Act for the employer to suspend where there are allegations of abuse.

After an investigation lasting a month, the employer concluded that there was no case for G to answer. However, as a result of the suspension, G had suffered a severe psychiatric reaction. The medical evidence was clear that the suspension was a substantial cause of this reaction. There was no pre-existing psychiatric history. G brought a case based upon a breach of her contract of employment, and in particular the implied terms of trust and confidence.

The court found that suspending someone in these circumstances, particularly with the allegations made in the suspension letter, were calculated to destroy the trust and confidence between employer and employee and would, therefore, justify a claim for breach of contract unless the employers could, for their part, lawfully justify their actions.

There were two significant failures on the part of the council. Firstly, they had suspended before carrying out preliminary investigations to ascertain if there was a case to answer. The suspension commenced at the beginning of the investigation process and was held to be a ‘knee jerk reaction’.

Secondly, no realistic consideration was given to alternative employment during the period of the initial investigation. The court held that they did not believe that no alternative duties could be found during this period.

Note

In misconduct cases, where practicable, different people should carry out the investigation and disciplinary hearing.

If the investigating officer concludes that there is a disciplinary case to answer, he should write to the employee giving details of the time and venue and advising the employee of his right to be accompanied. This notification should give enough detail about the alleged misconduct or poor performance to enable the employee to properly understand the charges made and to be able to prepare. The letter should set out the possible consequences. Copies of any written evidence, which may include any witness statements, should be provided with the notification.

Hold the meeting in a timely fashion, but allow the employee reasonable time to prepare his case.

Employers and employees should make every effort to attend the meeting. At the meeting, the employer should explain the complaint against the employee and go through the evidence that has been gathered. The employee should be allowed to give his version of events and answer any allegations that have been made. The employee should be given a reasonable opportunity to ask questions, present evidence and call relevant witnesses. He should also be given an opportunity to raise points about any information provided by witnesses. Where an employer or employee intends to call relevant witnesses, they should give advance notice that they intend to do this.

Right to be accompanied

 

Workers have a statutory right to be accompanied by a companion at a formal discipline or grievance meeting. The companion may be a work colleague or accredited trade union representative. The companion should be allowed to address the hearing to put and sum up the worker’s case, respond on behalf of the worker to any views expressed at the meeting and confer with the worker during the hearing. The companion does not, however, have the right to answer questions on the worker’s behalf, address the hearing if the worker does not wish it or prevent the employer from explaining its case.

If the companion is not available at the date of the hearing and the worker suggests another time that is reasonable and falls within five working days of the original hearing date, the hearing must be postponed until the new time proposed by the worker.

Within the statutory pool employees have more-or-less free range on who they want to act as their companion.

Example

Mr Toal and another employee raised formal grievances and were invited to a grievance meeting. The claimants wished to be accompanied by an elected official of Unite (who satisfied the definition of an accredited representative) but the company refused to allow them to be accompanied by this person. Mr Toal and his colleague chose someone else who did accompany them at the meetings. Thereafter the claimants complained that the employer had breached their right to choose a companion.

The Employment Appeal Tribunal agreed with them. The court rejected the employer’s argument that the choice of companion to accompany employees to a grievance hearing must be reasonable. It also ruled that where an employee chooses another companion after the first has been rejected it does not mean that the employee has waived their right to be accompanied by their first choice.

You may need to make arrangements for a different type of companion where an employee is disabled and might need additional help to participate in the process and present his case. For example, if an employee is deaf and his first language is British sign language, you may wish to arrange to have a BSL-trained interpreter present.

There’s no statutory right to be accompanied by a legal advisor. In 2011 the Supreme Court reversed this approach in the important case of R (on the application of G) v Governors of X School and Y City Council [2011], and the result is that employees at disciplinary hearings do not have an automatic right to legal representation.

Example

G was a teaching assistant who allegedly kissed a boy of 15. The school took the matter to a disciplinary hearing. G asked to be represented by a solicitor, but was refused. He was dismissed and the governors were obliged to report this to the Independent Safeguarding Authority(ISA) where he would be considered for inclusion on the list of those unsuitable to work with children under the Safeguarding Vulnerable Groups Act 2006.

G issued judicial review proceedings, complaining that denial of legal representation at the initial disciplinary proceedings breached his rights under Article 6 of the European Convention on Human Rights, the right to a fair trial.

Initially he succeeded but on appeal to the Supreme Court, the Court found that Article 6 did not come into play at the initial disciplinary stage. The school was not concerned with G’s civil rights, merely his employment. The majority found that the hearing result would not have had a substantial influence on the later decision to place him on the list of people barred from working with children.

Lord Dyson in his lead judgment found that that the civil right in question was G’s ability to continue in his profession which involved working with children. Therefore a decision by the ISA to bar him would affect his civil rights and Article 6 would apply to those ISA proceedings.

In the view of the Court, it was not the school’s function to determine later proceedings concerning G’s civil rights. The only function of the school disciplinary panel was to determine whether G should continue to be employed and those proceedings did not have substantial influence over the ISA proceedings. The ISA is an independent body. In making the decision whether to place an individual on the barred list, it must assess fully the facts using its independent discretion. The court also recognised the risks surrounding a decision to require legal representation at disciplinary hearings.

The effect of the Supreme Court’s decision is that employees who are subject to ISA approval are not able to argue that they have a right to legal representation at disciplinary hearings due possible subsequent influence on later proceedings.

This decision may also affect employees regulated by other external authorities. The test to be employed will be that of “substantial influence or effect” on subsequent proceedings. Therefore if there is any risk of substantial influence or effect on subsequent proceedings it seems that Article 6 will be engaged, meaning there may well be a right to legal representation at the earlier stage.

In misconduct cases, where practicable, different people should carry out the investigation and disciplinary hearing.

After the meeting, decide whether or not disciplinary or any other action is justified and inform the employee accordingly in writing.

Warnings

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.

If an employee’s first misconduct or unsatisfactory performance is sufficiently serious, it may be appropriate to move directly to a final written warning. This might occur where the employee’s actions have had, or are liable to have, a serious or harmful impact on the organisation.

A warning should set out the nature of the misconduct or poor performance and the change in behaviour or improvement in performance required (with timescale). The employee should be told how long the warning will remain current. The employee should be informed of the consequences of further misconduct, or failure to improve performance, within the set period following a final warning. For instance, that it may result in dismissal or some other contractual penalty, such as demotion or loss of seniority.

If you give an inappropriately heavy warning at early stage, that can make a subsequent dismissal unfair.

This following case is drawn from my own experience so there is no case citation.

Example

A woman, X, had worked for a company for 20 years, including several TUPE transfers. Her work involved regular interactions with the public. She had a clean disciplinary record, but this was largely because former managers had failed to manage her. She was something of a challenge and there had been several difficult periods during which her employer Q Ltd sought to manage her. All this was informal but had been documented.

Things came to a head when she made a remark which referred to racial origins and annoyed two third parties. Her manager spoke to her informally and was prepared to accept that her remark was not racist. She was given informal guidance that she should not repeat such remarks again. During the conversation she mimicked the Irish accent of one of the third parties, an employee of Q Ltd’s client. However, after being rebuked she accepted that this was inappropriate. She was later given a note of the meeting for her records. She showed this to a friend who had some connection with the company’s client. Rightly or wrongly, Q Ltd felt that the matter was provocative and showing the document to a person connected with their client could damage the already delicate relationship with their client. X was taken through the disciplinary process. The action was treated as gross misconduct and she was given a final warning which was upheld on appeal. Because of the relationship problems X was transferred to another site and a number of adjustments made to accommodate her pay and former working patterns. She went off sick with stress. Shortly after she came back she attended a dignity at work training session after which she verbally attacked the presenter in front of a number of witnesses.

X was taken through the process and dismissed. During the period running up to the disciplinary hearing and the hearing itself, X engaged in abusive and obscene language directed towards the managers dealing with the process. At no stage through the discipline or appeal processes did she seem to recognise that her conduct was inappropriate and ill judged, express remorse, demonstrate any commitment to meet the company’s standards going forward or ask for her job back.

She complained that she had been unfairly dismissed. She asked for reinstatement and compensation of £30k. It went to trial and the tribunal agreed with her on the basis that she had been unfairly dismissed. The company was not criticised for the final stage, but the giving of the final written warning was too harsh a sanction and it negatively impacted later disciplinary action.

However, the tribunal found that X was 80 per cent to blame for her dismissal, they refused reinstatement and she was awarded just over £1,000. A technical loss for us, but as close to a win as we could get in the circumstances.

The lesson to learn is that however trying an employee is, take a cautious approach to applying sanctions. Less is more in these cases.

Dismissal

A decision to dismiss should only be taken by a manager who has the authority to do so. The employee should be informed as soon as possible of the reasons for the dismissal, the date on which the employment contract will end, the appropriate period of notice and their right of appeal.

Some acts, termed gross misconduct, are so serious in themselves or have such serious consequences that they may call for dismissal without notice for a first offence. But a fair disciplinary process should always be followed, before dismissing for gross misconduct.

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, gross negligence or serious insubordination.

Where an employee is persistently unable or unwilling to attend a disciplinary meeting without good cause the employer should make a decision on the evidence available.

Appeals

Where an employee feels that disciplinary action taken against him is wrong or unjust, he should appeal against the decision. Appeals should be heard without unreasonable delay and ideally at an agreed time and place. Employees should let employers know the grounds for their appeal in writing.

The appeal should be dealt with impartially by a manager who has not previously been involved in the case.

These points are revisited and discussed in more detail throughout this topic.

You will find more information on the ACAS website.