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Discipline & Grievance

Disciplinary and grievance procedures

From lst October 2004 new procedures came into effect providing that :-

  • unless an employer follows a minimum disciplinary and dismissal procedure any dismissal which takes effect will be automatically unfair and will lead to an increased award of compensation being made against an employer if the dismissed employee complains to an employment tribunal;
  • unless an employee tries to resolve any work place complaint internally by lodging a formal grievance and allows the employer at least twenty eight days to try and resolve matters he/she will not normally be allowed to bring an employment tribunal claim.   

DISCIPLINARY PROCEDURES

The statutory procedure now in place provides, as a minimum, that a three step procedure must be followed :-

Step One

  • the employer should inform the employee in writing of the alleged misconduct or unsatisfactory performance which has caused the employer to contemplate dismissing or taking disciplinary action against the employee;
  • the employer should invite the employee to a meeting to discuss the matter and inform him/her of the right to be accompanied.     

Step Two

  • the meeting should take place before any disciplinary action is taken except where an employee is suspended pending a disciplinary hearing.   
  • the meeting should not take place unless :-
  • the employer has informed the employee what the basis was for including in the written statement under Step One the ground or grounds given in it and
  • the employee has had a reasonable opportunity to consider his/her response to that information;
  • the employee should take all reasonable steps to attend the meeting;
  • following the meeting the employer should inform the employee of his decision and notify the employee of the right to appeal against that decision if he/she is dissatisfied with it;

Step Three

  • an employee who does not wish to appeal the decision should inform the employer of that fact.
  • if an employee does appeal the decision the employer should invite the employee to attend a further appeal meeting.   
  • the employee should take all reasonable steps to attend the appeal meeting.
  • the appeal meeting need not take place before the disciplinary action or dismissal has taken effect.
  • the employee should be notified of the right to be accompanied at the appeal meeting.
  • following the appeal meeting the employer should inform the employee of the final decision.  

If an employer fails to comply with the three step procedure the dismissal of an employee will be automatically unfair and a Tribunal must (save where there are exceptional circumstances), increase any award of compensation given to the employee by 10% minimum and may increase it by up to 50% maximum. 

Modified dismissal procedure

The modified procedure will only apply in cases where an employer has already dismissed the employee in circumstances where it was reasonable to do so without detailed investigation.   Its use will rarely be justified but it must be a dismissal without notice on the grounds of conduct and the dismissal must take place at the time the employer became aware of the conduct or immediately afterwards.  It must be reasonable for the employer to dismiss the employee before further enquiry into the circumstances in which the misconduct took place.  A two step process must be followed :

Step One

The employer must :-

Set out in writing -

  • the alleged misconduct of the employee which led to the dismissal;
  • what the basis was for thinking at the time of the dismissal that the employee was guilty of the alleged misconduct;
  • the employee's right to appeal against dismissal and
  • A copy of the written statement must be sent to the employee

Step Two

  • if the employee wishes to appeal the employer should be informed.
  • if the employee chooses to appeal the employer must invite the employee to attend a meeting.
  • the employee has the right to be accompanied at the appeal hearing.
  • the employee must take all reasonable steps to attend the appeal meeting.
  • following the appeal meeting the employer should inform the employee of his final decision.

 

General principles

ACAS identify the following as "core principles of reasonable behaviour" for use in disciplinary procedures :-

  • procedures should be used primarily to help and encourage employees to improve rather than merely to impose punishment.
  • employees should be informed of any complaint against them and provided with an opportunity to state their case before decisions are reached. 
  • employees should be accompanied at all disciplinary meetings.
  • disciplinary action should not be taken until the facts have been established and a decision made that the proposed action is reasonable in the circumstances.
  • an employee should not be dismissed for a first disciplinary offence unless it is one of gross misconduct.
  • an employee should be given a written explanation for any disciplinary action taken and notified of any improvement expected.
  • an opportunity to appeal any disciplinary decision should always be given. 
  • issues should be dealt with thoroughly and promptly.
  • disciplinary action should be consistent

 

GRIEVANCE PROCEDURES

The statutory definition of grievance is "a complaint by an employee about action which his employer has taken or is contemplating taking in relation to him".  

Employees have to invoke one of the statutory grievance procedures before being able to lodge a claim with an Employment Tribunal.    Failure to continue with the procedure can lead to a reduction in compensation subsequently awarded by a Tribunal.  Failure by an employer to comply with the statutory grievance procedure will result in increased compensation if the employee pursues a complaint to an employment tribunal and is successful. 

The standard grievance procedure is as follows :-

Step One 

  • The Employee must set out the grievance in writing and send the statement or a copy of it to the employer.

Step Two

The employer should invite the employee to attend a meeting to discuss the grievance.

The meeting should not take place unless

  • the employee has informed the employer what the basis for the grievance was when he made the statement and the employer has had a reasonable opportunity to consider his response to that information;
  • the employee must take all reasonable steps to attend the meeting ;
  • after the meeting the employer must inform the employee of his decision as to his response to the grievance and notify the employee of the right to appeal against the decision if he/she is not satisfied with it.

Step Three

  • if the employee wishes to appeal he must inform the employer;
  • if the employee informs the employer of the wish to appeal the employer must invite him/her to attend a further meeting;
  • the employee must take all reasonable steps to attend the meeting;
  • after the appeal meeting the employer must inform the employee of his final decision.

 

MODIFIED PROCEDURE

The modified procedure is only to be used when employment has ended and both sides agree in writing to use it.   

Step One

The employee must :-

  • Set out in writing -
  • the grievance and
  • the basis for it, and
  • Send the statement, or a copy of it, to the employer

Step Two

  • The employer must set out his response in writing and send the statement or a copy of it to the employee.

 

General principles

The following principles should be adhered to in all grievance procedures :-

  • each step and action under the procedure should be taken without unreasonable delay.
  • the timing and location of the meeting should be reasonable.
  • meetings should be conducted in a manner that enables both employer and employee to explain their cases.
  • in the case of appeal meetings which are not the first meeting the employer should, so far as is reasonably practicable, be represented by a more senior manager than attended the first meeting (unless the more senior manager attended that first meeting).

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