Procedures
It is highly advisable that a business maintains written dismissal, disciplinary and grievance rules and procedures. Failure to have and follow the requisite procedures, increases risks in various contexts, including in particular, in the area of unfair dismissals.
An employer is obliged to inform each employee of its disciplinary rules, the disciplinary/dismissal procedures and the name of the person to whom they should apply if they are unhappy about a disciplinary or dismissal decision or if they seek redress for a grievance. It may be included in the employee’s written statement of terms of employment or it may be referred to in the staff handbook.
The procedures must meet the minimum requirements of the procedures laid down by law. An employer can choose either to follow the procedures or add extra rules and steps so as to create its own procedures. An employer’s failure to follow procedures may result in an increase of compensation up to 25% in an unfair dismissal claim.
The Secretary of State and Acas may issue Codes of Practice subject to Parliamentary approval. A statutory code, although not legally binding, is admissible in evidence and can be taken into account by the employment tribunal.
In order to provide an incentive to follow the recommended practice, employment tribunals have the discretion to vary awards for unreasonable failure to comply with any relevant Code of Practice relating to workplace dispute resolution.
The employment tribunal may if it considers it just and equitable, decrease any award to an employee by no more than 25% if it appears to the tribunal that the employee has unreasonably failed to comply with the relevant Code of Practice.
The procedures would not normally form part of an employment contract. It is, however, possible that they could be incorporated so as to become part of the contract. In this event, a failure to follow the procedures could leave an employer liable for breach of contract.
An employer should set out rules, standards of conduct and performance required. This should be communicated to the workforce, preferably in a staff handbook. This will not be expected to contain everything. It would normally cover such matters as absence, discrimination, bullying, harassment, health and safety, appearance, prohibited activities, smoking, workplace standards, timekeeping, use of facilities and equipment.
The rules should also set out behaviour which will be treated as gross misconduct i.e. misconduct that is so serious that it could lead to dismissal without notice. It is important to give examples of what counts as gross misconduct e.g. bullying, drunkenness, fighting, fraud, gross negligence, a serious breach of health safety, theft, wilful damage etc. What will constitute gross misconduct will vary and will depend on the workplace and the nature of the business.
Disciplinary action should have an informal as well as formal aspect. An informal discussion is more likely to reach a satisfactory solution. However, if poor conduct or performance continues, it may be necessary to take formal disciplinary action. The rules should allow for a meeting to explain the procedure and give reasons. A further written warning or final warning should generally be given.
After giving a warning, an employer must allow the employee time to improve behaviour. The employer can only move on to the next stage if the previous warning can be shown to have no effect. In the case of very serious misconduct, it may be permissible to bypass this stage in order to deal with the matter immediately.
The employee has the right to be accompanied at any meeting by a colleague or union representative. Copies must be given of any evidence that may be used at the meeting.
Procedures
The employee is to be informed in writing why it is contemplated that dismissal or disciplinary action is to be taken. The employee is to be invited to a meeting and given sufficient time to prepare.
The meeting must be held and a decision made after the meeting. The employee must be notified of the right to appeal. If the employee wishes to appeal against a disciplinary action that has been decided, the employee must be invited to a further meeting. See below regarding appeal.
In the rare cases of very serious misconduct immediate dismissal may be warranted. The procedure has two stages namely a written statement setting out the conduct that has resulted in the dismissal and informing the employee of the right to appeal and an appeal meeting.
If the employee wishes to appeal he must inform the employer and a meeting must be held. The employer must inform the employee of the decision following the meeting. The employee has the right to be accompanied by a colleague or union representative.
Disciplinary investigations
When a disciplinary matter is involved employers should carry out a full investigation before taking any action. In misconduct cases, where practicable, different people should carry out the investigation and disciplinary hearing.
The alleged breach, the circumstances, consequences, the employee’s job, length of experience, service and record must be considered. The evidence, recent changes, previous incidents, mitigating circumstances must be considered in full. Once the evidence is reviewed it should be decided whether there is a case to answer or whether it is serious enough for disciplinary measures. An informal solution may be appropriate as an alternative to disciplinary action.
For certain serious offences, a suspension may take place where it is necessary. This should normally be on full pay. If it is intended to suspend without pay, this needs to be provided for in the employment contract terms. In cases where a period of suspension with pay is considered necessary, this period should be as brief as possible, should be kept under review and it should be made clear that this suspension is not considered a disciplinary action.
A full investigation should be carried out of the relevant circumstances. All relevant facts and documents should be made available. The employee must be given details of the circumstances and allegations and he must be given the opportunity to prepare his case and consult representatives. He must be given details of the complaint, the procedures to be followed, the need for them to attend, the right to be accompanied, the right to delay the hearing if their chosen companion cannot attend and the text of any witness statements if heavy reliance is to be placed on them. He must be given copies of documents that are intended to be relied on against the employees.
At a disciplinary hearing, the nature of the complaint and the procedure should be explained to everyone involved. The employee is entitled to see any statements to be made by witnesses that he has not already seen and must be given a chance to state his case and respond to allegations. The person holding the tribunal must ascertain all facts in relation to the complaint and take notes of any special circumstances.
The employee is to be informed of the decision and it should be made clear as to what is to happen next. If there is a satisfactory explanation for the conduct or performance the hearing should be stopped and no further disciplinary action should be taken.
If any penalty is proposed, it should specify the reason behind the decision. Depending on the circumstances it should be stated what specific improvement is required, if any, how long a warning may be in force, the likely consequences of a repetition of this conduct and that there is the right of appeal.
After a disciplinary hearing, the employer may elect whether to take any action or not. If a disciplinary penalty is taken, it should be based on the full circumstances and any special circumstances applicable to the employee. A penalty short of dismissal could include transfer to another job, non-payment of bonuses or suspension without pay.
Dismissal
The most severe sanction is dismissal. Normally, dismissal should only take place only following the conclusion of the process. Generally, warnings should have issued and it should have been made clear that if the conduct or performance did not improve dismissal could follow. It is usually necessary at the very least to have followed the standard dismissal and disciplinary procedures. Failure to do so would make any dismissal automatically unfair.
In the case of gross misconduct, it may be possible to dismiss immediately without giving notice or pay in lieu of notice. However, summary dismissal is generally not recommended. It is better to investigate the incident fully, suspend the employee on full pay and follow standard dismissal and disciplinary procedures.
The ACAS Code- Discipline
The ACAS Code of Practice on Disciplinary and Grievance Procedure represents a model code. The employment tribunal may if it considers it just and equitable, decrease any award to an employee by no more than 25% if it appears to the tribunal that the employee has unreasonably failed to comply with the relevant Code of Practice. A dismissal is more likely to be found unfair in the first place if fair procedures such as those in the Code are not followed.
Where misconduct is confirmed or the employee is found to be performing unsatisfactorily it is usual to give the employee 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. 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 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
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.
Where an employee feels that disciplinary action taken against them is wrong or unjust they 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 and, wherever possible, by a manager who has not previously been involved in the case.
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 an employee is charged with, or convicted of a criminal offence this is not normally in itself reason for disciplinary action. Consideration needs to be given to what effect the charge or conviction has on the employee’s suitability to do the job and their relationship with their employer, work colleagues and customers.
The ACAS Code Grievances
If it is not possible to resolve a grievance informally employees should raise the matter formally and without unreasonable delay with a manager who is not the subject of the grievance. This should be done in writing and should set out the nature of the grievance.
Employers should arrange for a formal meeting to be held without unreasonable delay after a grievance is received. Employers, employees and their companions should make every effort to attend the meeting. Employees should be allowed to explain their grievance and how they think it should be resolved. Consideration should be given to adjourning the meeting for any investigation that may be necessary.
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 statutory right is to be accompanied by a fellow worker, a trade union representative, or an official employed by a trade union. A trade union representative who is not an employed official must have been certified by their union as being competent to accompany a worker.
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 their case.
Following the meeting decide on what action, if any, to take. Decisions should be communicated to the employee, in writing, without unreasonable delay and, where appropriate, should set out what action the employer intends to take to resolve the grievance. The employee should be informed that they can appeal if they are not content with the action taken.
Where an employee feels that their grievance has not been satisfactorily resolved they should appeal. They should let their employer know the grounds for their appeal without unreasonable delay and in writing.
Appeals should be heard without unreasonable delay and at a time and place which should be notified to the employee in advance.
The appeal should be dealt with impartially and wherever possible by a manager who has not previously been involved in the case. Workers have a statutory right to be accompanied at any such appeal hearing.
The outcome of the appeal should be communicated to the employee in writing without unreasonable delay.
Where an employee raises a grievance during a disciplinary process the disciplinary process may be temporarily suspended in order to deal with the grievance. Where the grievance and disciplinary cases are related it may be appropriate to deal with both issues concurrently.
The provisions of the Code do not apply to grievances raised on behalf of two or more employees by a representative of a recognised trade union or other appropriate workplace representatives. These grievances should be handled in accordance with the organisation’s collective grievance process.
