Disciplinary & Grievance Procedures

Transcription

1 Disciplinary & Grievance Procedures April : How much of a change?

2 Clients find the team has real depth of experience on stand-alone employment issues. Chambers & Partners 2008 Contents 3 Out with the old, in with the new 4 Key changes 5 About the Code and the Guide 6 Application of the Code 7 The role of employer procedures 8 Informal resolution 9 Disciplinary procedure 10 Dealing with misconduct and poor performance 15 Dealing with grievances 18 The right to be accompanied 19 Other issues 20 Transitional arrangements 21 Key contacts

3 Out with the old, in with the new To widespread jubilation, the much-disliked statutory dispute resolution procedures are being consigned to the legislative dustbin from 6 April. They are to be replaced by a new version of the Acas Code of Practice on disciplinary and grievance procedures and a new non-binding Acas Guide. Our guide sets out the key elements of the new regime in more detail. It is accurate but not always comprehensive and should not be relied on as legal advice when handling particular situations. For that, feel free to contact us by phone, or in person. Anthony Fincham Partner, Head of Employment E anthony.fincham@cms-cmck.com T +44 (0)

4 Key changes The changes are intended to make dispute resolution more flexible and reduce the emphasis on process. However there will still be financial penalties for a failure to follow the Code. Key differences between the Code and the statutory procedures the new regime encourages informal resolution of problems through steps such as mediation the Code applies to disciplinary procedures resulting in warnings as well as dismissal the Code does not apply to redundancies or non-renewal of fixed-term contracts no extension of the usual time limits for bringing tribunal claims where a disciplinary or grievance procedure is ongoing no bar to bringing a tribunal claim if an employee has failed to follow the Code no automatic unfairness for an employer s failure to follow the Code adjustment to compensation for either party s failure to follow the Code is limited to: - a maximum of 25% up or down - where the failure is unreasonable, and - the adjustment is just and equitable in the circumstances unreasonable failure to follow the Code will make a dismissal unfair but compensatory awards can be reduced (even to nil) to reflect the likelihood that dismissal would still have resulted if the correct procedure had been followed What should employers be doing? training managers to understand the Code and its requirements involving employees and their representatives in developing new or revised procedures including provisions in the new procedures: - allowing the suspension of grievance procedures to attempt mediation or making mediation a formal step in the procedure - giving employees a right of appeal against warnings and improvement notes - allowing a clear distinction to be drawn between formal and informal grievances - setting out timescales for actions by employees, such as lodging appeals and providing witness statements where possible, issue disciplinary warnings before 6 April to avoid having to allow appeals and make redundancies after 5 April! Issues for further consideration The Code does not clarify to what extent employers should involve employees in formulating new procedures. How far is an employer obliged to go? What procedure should an employer follow in relation to redundancy/termination of fixed-term contracts? When and how much of an increase/reduction to the level of compensation can be expected, and in what circumstances? What weight will be given to the Acas Guide by tribunals? 4 Disciplinary & Grievance Procedures CMS Cameron McKenna LLP

5 About the Code and the Guide How the Code works The Code is not legally binding but instead: sets out the basic requirements of fairness and the standard of reasonable behaviour that will apply in most cases is admissible in evidence must be taken into account by tribunals whenever relevant Basic principles of fairness According to the Code, basic fairness means: raising and dealing promptly (and without unreasonable delay) with issues, decisions or confirmation of those decisions holding meetings without unreasonable delay acting consistently investigating where necessary to establish the facts telling employees what the basic problem is letting them put their side of the story before any decisions are made letting them be accompanied at formal disciplinary or grievance meetings letting them appeal against formal decisions The role of the Acas Guide The Acas Guide need not be taken into account but may be helpful to tribunals when deciding: whether the Code has been breached whether any breach of the Code is unreasonable what adjustment to compensation might be appropriate for an unreasonable breach What procedure is reasonable or justified will depend on all the circumstances of the particular case (including employer s size and resources). The Guide borrows much from the 2004 Acas Code and so includes material which tribunals are accustomed to using to determine standards of fairness. 5 Disciplinary & Grievance Procedures CMS Cameron McKenna LLP

6 Application of the Code When the Code applies Disciplinary/grievance issue Discipline Grievance Misconduct Ill-health x Poor performance * Redundancy x x Retirement x Business reorganisation x Bullying * Harassment * Whistleblowing N/A * Collective grievances raised by union or employee reps N/A x Expiry of fixed-term contract x x Other x * This issue can be dealt with under a separate employer procedure (still subject to Code principles) If the Code does not apply the basic requirements of fairness must still be followed to avoid unfair dismissal employer procedures don t usually need to allow employees to be accompanied at meetings employer procedures don t need to allow appeals against warnings or other action short of dismissal there is no 25% adjustment to compensation for unreasonable non-compliance 6 Disciplinary & Grievance Procedures CMS Cameron McKenna LLP

7 The role of employer procedures The Code: suggests that employers develop their own rules and procedures in line with the Code says that employees and, where appropriate, their representatives should be involved in this says that any employer procedures should be specific, clear and in writing suggests that employers should help employees and managers understand what the procedures are, where to find them and how to use them suggests that employers might wish to develop a separate procedure for poor performance suggests that employers might wish to develop a separate procedure for dealing with whistleblowing and grievances about bullying or harassment All procedures must observe the same standards of fairness as the Code. The Guide: According to the Guide, a good disciplinary procedure should: be in writing, non-discriminatory and apply to all employees (or say if there are different rules for different groups) provide for speedy resolution allow information to remain confidential explain what disciplinary action might be taken say what levels of management are authorised to take what decisions prevent dismissal for a first breach, except for gross misconduct 7 Disciplinary & Grievance Procedures CMS Cameron McKenna LLP

8 Informal resolution Both employers and employees are now encouraged to always seek informal resolution in the workplace and to consider using an independent third party either an internal or an external mediator. A quiet word is often all that is required to improve an employee s conduct or performance. In some cases additional training, coaching and advice may be what is needed. The Code allows for a clearer distinction between formal and informal grievances than was possible under the statutory procedures. Employers can ask the employee if they want to raise a formal or informal grievance and rely on the answer they receive. The Code also recommends informal discussions with a trade union official before starting any disciplinary procedure against a trade union representative, if the employee agrees. Mediation is voluntary, flexible and confidential is morally but not legally binding does not usually involve legal representation is most effective if used early on in a dispute involves an impartial mediator (chosen by agreement or by a specialist mediation body) talking to both sides separately or together aims to help both sides see each other s point of view and restore the employment relationship can look at a much broader range of possible solutions than are available via tribunal proceedings usually takes place at a neutral venue There are no hard-and-fast rules for when mediation is appropriate. To mediate Where conflict involves similar grade colleagues or is between a line manager and their staff. At any stage as long as formal proceedings are put on hold or mediation is included as a specific stage. Where there is an attempt to rebuild relationships after a formal dispute has been resolved. Where there are a range of issues to be addressed, e.g. relationship breakdown, personality clash, bullying and harassment. Or not to mediate Too early in the process when parties should be encouraged to talk to each other. If being used by manager to avoid managerial responsibilities. A definite answer about right or wrong is required. Claimant wants issues of discrimination or harassment investigated. Parties have no power to settle the issue. One party is completely entrenched. 8 Disciplinary & Grievance Procedures CMS Cameron McKenna LLP

9 Disciplinary procedure Disciplinary issue arises Informal action Resolved informally Informal warning Issue unresolved Formal action necessary Investigate Notify the Employee Appeal Hold Disciplinary meeting Meet Decision Decision Resolved Formally Misconduct Repeated misconduct Serious/further misconduct Gross misconduct Written warning Final written warning Dismissal on notice Summary dismissal Compulsory training etc If contract allows: transfer demotion loss of status loss of pay loss of privileges 9 Disciplinary & Grievance Procedures CMS Cameron McKenna LLP

10 Dealing with misconduct and poor performance The Disciplinary Investigation In the Code: establish the facts by either holding an investigatory meeting or conducting an investigation act without unreasonable delay where practicable, different people should carry out the investigation and the disciplinary meeting the investigatory meeting should not result in a disciplinary sanction consider allowing employee to bring a companion to the investigatory meeting (no right to do so) it is permissible to suspend the employee on full pay while investigating In the Guide: the more serious the problem, the more thorough the investigation needs to be fact-finding meetings are not always needed employees called to fact-finding meetings should be given advance warning and time to prepare Notice of the Disciplinary Meeting In the Code: Decide whether there is a case to answer and, if so, notify the employee in writing: that there is a disciplinary case to answer the time and place of the disciplinary meeting that he is entitled to a companion Include with the Notice: enough information about the case and its possible consequences so he can prepare his response copies of any written evidence advance notice of any witnesses including copies of any witness statements The employee must also provide advance notice of any witnesses or their witness statements. In the Guide: employees should also be told about the procedure to be followed 10 Disciplinary & Grievance Procedures CMS Cameron McKenna LLP

11 The Disciplinary Meeting In the Code: ensure any manager taking the decision has authority to dismiss (if dismissal is a possibility) avoid unreasonable delay but give the employee reasonable time to prepare employers, employees and their companions should make every effort to attend the employer should explain the complaint and go through the evidence the employee should set out his case and answer the allegations the employee should be allowed to ask questions, present evidence, call witnesses and raise any points about witness evidence the employer can make a decision on the evidence available where an employee is persistently unable or unwilling to attend without good cause In the Guide: hold the meeting in a private room where you won t be interrupted introduce everyone and explain their role explain the purpose of the meeting explain how the meeting will be conducted make sure all the relevant facts and documents are available arrange for someone who is not involved to take notes (and be a witness to what is said) ask open-ended questions avoid getting into arguments or making personal remarks adjourn if things get heated check for special or mitigating circumstances adjourn to investigate new facts or claims summarise the main points and check whether the employee has anything to add adjourn before reaching any decision Issues for further consideration What is unreasonable delay? What will constitute a persistent failure or unwillingness to attend a meeting? What limitations, if any, are there on the employee s ability to call witnesses? Will it always be a breach of the Code to suspend without pay? 11 Disciplinary & Grievance Procedures CMS Cameron McKenna LLP

12 The Disciplinary Decision In the Code: adjourn the meeting decide whether disciplinary or other action is justified give the decision as soon as possible and confirm it in writing In the Guide: check whether your disciplinary rules indicate the likely penalty for particular misconduct check what penalties have been imposed in similar cases in the past check the employee's disciplinary record, general work record, experience, position and service check whether there are any special circumstances justifying a harsher or softer penalty make sure the proposed penalty is reasonable in view of all the circumstances check whether any training, additional support or adjustments would help the employee improve Notification of a decision should set out the decision and the reasons for the decision should set out the date on which the employee s employment or the warning will end should set out the employee s right of appeal should require the employee to acknowledge receipt Written warnings Written warnings are normally appropriate for misconduct. Written warnings for poor performance are sometimes described as improvement notes. Warnings must state: the problem the required improvement or change in behaviour the timescale for improvement or change in behaviour how long the warning will remain current the consequences of further misconduct/failure to improve performance (e.g. dismissal, demotion etc) Final written warnings are normally appropriate for: further misconduct while a previous warning is current sufficiently serious first offences (where serious or harmful impact on the organisation) Dismissal Dismissal is normally only appropriate for: further misconduct or failure to improve following a final written warning gross misconduct (acts which are very serious in themselves or have very serious consequences examples should be given in disciplinary rules) 12 Disciplinary & Grievance Procedures CMS Cameron McKenna LLP

13 The Appeal In the Code: intended for use when an employee feels that the action taken against him is wrong or unjust appeals should be in writing and state grounds of appeal appeals should be heard without unreasonable delay (ideally at an agreed time and place) if possible, appeals should be heard by a manager not previously involved the employee has a right to be accompanied In the Guide: Grounds of appeal include: new evidence undue severity of the penalty inconsistency of the penalty The precise grounds will determine whether the appeal should be dealt with by a review of the disciplinary sanction or a re-hearing. The appeals procedure should: specify a time limit for appeals to be made (five working days is normal) require them to be dealt with speedily, especially where the employee is suspended or dismissed wherever possible, require the appeal to be heard by someone with no previous involvement who is more senior than the person taking the original disciplinary decision spell out what action may be taken by those hearing the appeal set out the right to be accompanied at any appeal meeting allow the employee to comment on any new evidence before a decision is taken Issues for further consideration What does an employer do if there is not a more senior manager available to deal with the appeal? Is an employee entitled to an appeal at each stage of a disciplinary process, ie. each time a warning is given even if in a chain of misconduct? How should an employer react if an employee fails to comply with the Code? 13 Disciplinary & Grievance Procedures CMS Cameron McKenna LLP

14 The Appeal Meeting In the Guide: hold the meeting in a private room where you won t be interrupted introduce everyone and explain their role explain the purpose of the meeting explain how the meeting will be conducted ask the employee to say why they are appealing pay particular attention to any new evidence and allow the employee to comment on it arrange for someone who is not involved to take notes (and be a witness to what is said) summarise the main points and check whether the employee has anything to add adjourn before reaching any decision be willing to change a previous decision if it was not soundly based this doesn t undermine authority, it shows the appeal is independent if the decision is overturned, consider training for managers or rule changes or other follow-up The Appeal Decision In the Code: inform employee of decision as soon as possible in writing In the Guide: inform employee of reasons for decision make it clear, if it is the case, that this decision is final 14 Disciplinary & Grievance Procedures CMS Cameron McKenna LLP

15 Dealing with grievances Grievance Procedure Grievance arises Formal Notice Appeal Raised Informally Meeting Meeting Mediation Decision Decision Resolved Informally Resolved Formally In the Code: Grievances are any concerns, problems or complaints that employees raise with their employer. Try to resolve informally where possible. In the Guide: Grievances lend themselves to resolution by mediation. Managers should have training in how to deal with grievances. The Formal Grievance Notice In the Code: Formal grievances must: be in writing be made without unreasonable delay say what the grievance is be addressed to a manager who is not the subject of the grievance In the Guide: Formal grievances should be raised where the complaint is a serious one or attempts at informal resolution have failed. Where there is no other manager to deal with the grievance, the manager involved should make it clear that the grievance will be dealt with fairly and objectively even though it concerns something they have said or done. 15 Disciplinary & Grievance Procedures CMS Cameron McKenna LLP

16 Grievance Meeting In the Code: hold grievance meeting without unreasonable delay allow a companion (if the grievance is about a duty owed by the employer to the employee) employers, employees and companions should make every effort to attend allow employees to explain the grievance and say how it should be resolved consider adjourning to investigate or gather further evidence In the Guide: find out in advance whether similar grievances have been raised before and how they were handled hold the meeting ideally within five working days hold the meeting in a private room where you won t be interrupted arrange for someone who is not involved to take notes (and be a witness to what is said) consider allowing interpreters consider any reasonable adjustments for disabled employees and/or their companions consider offering mediation make introductions invite the employee to state their grievance and how they would like to see it resolved be calm, objective and as fair as possible encourage discussion to find an amicable solution make allowances if they let off steam or get stressed adjourn to investigate new facts summarise the main points tell the employee when they can expect a decision if it can t be made immediately The Grievance Decision In the Code: decide after the meeting has ended what action, if any, to take notify the employee of your decision in writing, without unreasonable delay notify the employee of their right to appeal state action to be taken to resolve the grievance 16 Disciplinary & Grievance Procedures CMS Cameron McKenna LLP

17 In the Guide: before reaching a decision, allow time for reflection and for checking any facts explain the reasons carefully where the grievance is not upheld remember that actions taken to resolve a grievance may cause others to feel aggrieved address any issues concerning policies, procedures or conduct as soon as possible ensure any action taken is monitored and reviewed to ensure it deals effectively with the grievance give copies of meeting records to the employee The Appeal In the Code: the appeal process is intended for use when an employee feels that their grievance has not been satisfactorily resolved appeals should be made in writing and state the grounds appeals should be made without unreasonable delay appeals should be heard without unreasonable delay employers should notify the employee in advance of the time and place of the appeal meeting if possible, a manager not previously involved should hear the appeal the employee has a right to be accompanied if the original grievance is about a duty owed by the employer to the employee The Appeal Decision In the Code: give the employee the decision in writing without unreasonable delay In the Guide: large employers may wish to allow a further appeal to a higher management level (e.g. a director) Issues for further consideration Should employers retain a modified grievance procedure if they already have one? Will an employee s failure to bring a grievance have any impact on a subsequent tribunal claim? How should employers deal with grievances after employment has ended? 17 Disciplinary & Grievance Procedures CMS Cameron McKenna LLP

18 The right to be accompanied What it is Employees have the right to be accompanied to: disciplinary meetings disciplinary appeal meetings grievance meetings - in most circumstances grievance appeal meetings - in most circumstances If an employee wishes to exercise this right they need to indicate that they wish to be accompanied and any such request must be reasonable. It would not normally be reasonable to choose someone whose presence would prejudice the hearing or whose availability is compromised by their location where another suitable companion is available on site. Employers can (but don t have to) allow companions at investigatory meetings. Companions Companions may be: a fellow worker a union official a union representative certified as competent to act as a companion Employers can (but don t have to) allow employees to be accompanied by a legal representative or by a friend or family member who does not also work for them. Widening the category of permitted companions may be a reasonable adjustment for employees with a disability. Companions: can confer with the employee (if the employee wants) can address the meeting to put the employee s case (if the employee wants) can sum up the employee s case (if the employee wants) can respond on the employee s behalf to views expressed at the meeting cannot do any of the above in a way that stops the employer from explaining its case or prevents any other person present from making his contribution Employers can (but don t have to) allow companions to answer questions on the employee s behalf. Time off Companions are entitled to reasonable time off with pay to attend the hearing (if within the employer s control). Postponements If the chosen companion is unavailable on the day and time set for the hearing, the employer must postpone the hearing if requested to do so by the employee as long as the employee proposes a reasonable alternative time and date that is no more than five working days after the original date. 18 Disciplinary & Grievance Procedures CMS Cameron McKenna LLP

19 Other issues Record keeping Disciplinary issues According to the Guide, employers should keep confidential records of: complaints against employees the employee s defence findings made and actions taken the reason for actions taken whether an appeal was lodged the outcome of the appeal any grievances raised during the disciplinary procedure subsequent developments notes of formal meetings Grievance issues According to the Guide, employers should keep confidential records of all grievances including: the nature of the grievance what was decided and actions taken the reason for the actions whether an appeal was lodged the outcome of the appeal any subsequent developments Records should not be kept longer than necessary (as required by the Data Protection Act 1998). Overlapping grievance and disciplinary issues The Code simplifies the procedure for overlapping grievances and disciplinary issues. It allows the disciplinary process to be suspended to deal with a grievance raised during it and also allows them both to be dealt with at the same time where the issues are related. 19 Disciplinary & Grievance Procedures CMS Cameron McKenna LLP

20 Transitional arrangements The statutory disciplinary procedures continue to apply to disciplinary action where, on or before 5 April, the employer has: disciplined or dismissed the employee sent a Step 1 letter, or held a Step 2 meeting The statutory grievance procedures continue to apply to grievances about employer conduct: occurring wholly before 6 April starting on or before 5 April - about any other employer conduct - resulting in a Step 1 letter or tribunal complaint on or before 4 July starting on or before 5 April - about equal pay, redundancy pay and some industrial action dismissals - resulting in a Step 1 letter or tribunal complaint on or before 4 October Grievance procedures: transitional provisions When did the employer conduct end? On or after 6 April Before 6 April What employer conduct is the grievance about? Equal pay Redundancy payments Dismissal following a lockout or industrial action Other employer conduct Was a step 1 letter or tribunal claim lodged on or before 4 October? Was a step 1 letter or tribunal claim lodged on or before 4 July? No Yes Use new Acas Code Use statutory grievance procedure 20 Disciplinary & Grievance Procedures CMS Cameron McKenna LLP

21 Key contacts Anthony Fincham Partner E anthony.fincham@cms-cmck.com T +44 (0) Amy Bird Associate E amy.bird@cms-cmck.com T +44 (0) Sarah Ozanne Partner E sarah.ozanne@cms-cmck.com T +44 (0) Amy Harper Associate E amy.harper@cms-cmck.com T +44 (0) Huw Price Senior Associate E huw.price@cms-cmck.com T +44 (0) Tom Cloke Associate E tom.cloke@cms-cmck.com T +44 (0) Philip Cameron Senior Associate E philip.cameron@cms-cmck.com T +44 (0) Cara Tetlow Associate E cara.tetlow@cms-cmck.com T +44 (0) Sophie White Senior Associate E sophie.white@cms-cmck.com T +44 (0) Caroline Humphries Professional Support Lawyer E caroline.humphries@cms-cmck.com T +44 (0) Ian Watson Senior Associate E ian.watson@cms-cmck.com T +44 (0) Disciplinary & Grievance Procedures CMS Cameron McKenna LLP

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