Handling disciplinary and grievance issues

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1 Handling disciplinary and grievance issues

2 Further information If you would like further information on any aspect of handling disciplinary and grievance issues please contact a person mentioned below or the person with whom you usually deal. Contact David Harper T +44 (0) Elizabeth Slattery T +44 (0) This note is written as a general guide only. It should not be relied upon as a substitute for specific legal advice. It reflects the law as it stood in November 2009.

3 Contents Handling disciplinary issues 1 Responding to grievances 3 Managing tricky issues 4

4 Lovells Employment Group 1 Handling disciplinary issues Key Points From April 2009 a dismissal will not be automatically unfair just because an employer has not followed a mandatory procedure. Dismissals may be unfair if the employer has not followed the ACAS Code of Practice on disciplinary and grievance procedures. An unreasonable failure to follow the ACAS Code of Practice could also result in unfair dismissal compensation being increased by up to 25%. Employers should ensure their disciplinary procedures reflect the ACAS Code of Practice. INTRODUCTION When the Government introduced the statutory dispute resolution procedures in October 2004 it hailed them as "a simple, easy to follow basic procedure which will benefit employees, employers, and the tax payer". As most employers know, the reality has not matched the expectations and in March 2007 the Gibbons review described them as "a classic case of good policy, but inappropriately inflexible and prescriptive regulation". In light of that criticism, the Government accepted the recommendation that the statutory dispute resolution procedures should be repealed. This was achieved through the Employment Act 2008, which replaced the statutory procedures with a new regime to which employers have had to adapt. This note highlights some of the main points employers need to be aware of when handling disciplinary and grievance issues. EMPLOYMENT ACT 2008 The law has now largely reverted to the pre-october 2004 position. This means that there is no longer a mandatory procedure that has to be followed to avoid an automatically unfair dismissal. However, there is still the prospect of an additional financial sanction for employers who fail to follow fair procedures when dealing with disciplinary issues. The Employment Act 2008 requires Employment Tribunals to have regard to the revised ACAS Code of Practice on disciplinary and grievance procedures (the Code) when assessing whether or not a dismissal is fair. In itself, this is not new; the Code has always been relevant to the question of whether or not a dismissal is procedurally fair. However, in future, a Tribunal will also have to determine whether there has been an "unreasonable failure" to comply with the Code. If there has been such a failure by the employer, the Tribunal has the power (although is not obliged) to increase any unfair dismissal compensation awarded to the claimant by up to 25%. Similarly, if a claimant has unreasonably failed to comply with the Code, unfair dismissal compensation may be reduced by 25%. The Code is therefore now relevant to two issues. First, whether or not the dismissal is procedurally fair. Second, if it is not, whether the claimant's compensation should be increased to reflect the employer's procedural failings. MAIN REQUIREMENTS OF THE CODE The Code has been fully revised to take account of these changes. The new version is much shorter and less prescriptive than that which it replaces. It is also more limited in its scope. For example, the Code is only designed to deal with situations involving misconduct and/or poor performance. It does not apply to redundancies or the expiry of fixed term contracts. The introduction to the Code sets out some general principles which are relevant to handling disciplinary and grievance situations. These include: dealing with issues promptly; acting consistently; carrying out an investigation before taking any action; informing employees of the basis for any concern and giving them an opportunity to put their case before any action is taken; allowing employees to be accompanied to formal disciplinary or grievance meetings; and allowing employees to appeal against formal decisions taken in relation to a disciplinary or grievance matter. The Code recommends dealing with disciplinary issues informally if possible. Failing this, it moves on to look at each stage of the formal disciplinary process in more detail. Most employers will be familiar with the main provisions, reflecting as they do long-established principles of fairness. Investigations Where there is an aspect of an employee's conduct or performance that is causing concern, the employer should establish the facts of the case by carrying out an appropriate investigation. This could include meeting the employee to discuss any allegations that have been made, taking statements from other employees or gathering documentary evidence. The Code makes it clear that the investigation should usually be carried out by someone who will not conduct any subsequent disciplinary hearing. Any period of suspension pending or during an investigation should be with pay and for as brief a time as possible. Taking action Following the investigation, if the employer decides that there is a disciplinary case for the employee to answer, the employee needs to be notified of this in writing. The employee also needs to be given sufficient information about the misconduct or performance that is complained about to enable him to prepare his case. This would generally include copies of any of the documents upon which the

5 Lovells Employment Group 2 employer is intending to rely, such as statements from other employees, appraisals, or performance management documents. When convening a disciplinary hearing, the employer needs to balance the need to deal with matters promptly against the requirement to give the employee sufficient time before the hearing to prepare his case. Although the appropriate time period is not specified in the Code, employers typically allow at least three days between notifying the employee and holding the hearing. Where the disciplinary hearing could result in a formal warning, dismissal or some other disciplinary action, the employee has a statutory right to be accompanied by a colleague or union representative. In some circumstances, the employer may be under a duty to rearrange the hearing in order to allow the chosen representative to attend. At the disciplinary hearing, the employer needs to explain the basis of the allegations to the employee along with the evidence which has been collected. The employee needs to be given an opportunity to state his case and answer the allegations that have been put to him. The Code suggests that the employee should be allowed to call witnesses to give evidence to the disciplinary hearing if he chooses to do so. This is not something that many employers have permitted in the past. After the hearing After the hearing, the employer needs to decide what, if any, disciplinary action is appropriate. The Code confirms that the usual sanction for a first case of misconduct would be a written warning. However, in cases where the misconduct or poor performance is serious, or has been repeated following an initial warning, a final written warning may be appropriate. In either case, the warning should make clear what behaviour/performance has given rise to the disciplinary action, what improvement is required, the timescale for that improvement and the consequences if the employee fails to improve his conduct or performance. The Code recognises that in exceptional circumstances involving gross misconduct, it may be appropriate for an employer to proceed directly to dismissal. Examples of conduct that is considered to be gross misconduct should be set out in the employer's disciplinary procedures. The Code states that "a fair disciplinary process should always be followed, before dismissing for gross misconduct". Appeals Finally, the Code confirms the importance of the right to appeal against any disciplinary decision. Employees should notify the employer of the grounds of appeal in writing, and the appeal should be heard by the employer without delay. It is important that the person hearing the appeal has not been involved in earlier stages of the process, to show that the appeal is being dealt with impartially. The employee has a statutory right to be accompanied to appeal hearings.

6 Lovells Employment Group 3 Resolving grievances Key Points Employees no longer have to raise a grievance before making a Tribunal claim. The ACAS Code says that an employee "should" raise grievances formally and without unreasonable delay. An unreasonable failure to follow the ACAS Code by the employer could result in compensation being increased by up to 25%. An unreasonable failure to follow the ACAS Code by the employee could result in compensation being decreased by up to 25%. INTRODUCTION One of the key features of the statutory dispute resolution procedures was the requirement that an employee should raise a grievance with their employer and then wait 28 days before initiating Employment Tribunal proceedings. If an employee failed to raise the grievance with the employer the Employment Tribunal would not have jurisdiction to hear the complaint. Although simple in theory, the statutory grievance procedures caused many difficulties for employers in practice. Not least of these has been the broad approach taken by Tribunals to the question of what amounts to a grievance. It was a major flaw of the system that even where an employer legitimately failed to appreciate that an employee had raised a grievance, it faced the potential of a 50% uplift on any compensation subsequently awarded to the employee because it had failed to follow the statutory grievance procedure. THE EMPLOYMENT ACT 2008 As with the statutory disciplinary procedure, the statutory grievance procedure was repealed in relation to acts occurring on or after 6 April 2009, subject to some complicated transitional arrangements for continuing acts beginning before that date. Instead, the focus has now shifted to whether the employer and employee have complied with the Code. If the employee has failed to comply, for example by failing to raise a grievance with his employer, his compensation in the event of a successful claim could be reduced by up to 25%. Similarly, if an employer fails to deal with a grievance in accordance with the Code, any compensation could be increased by up to 25%. MAIN REQUIREMENTS OF THE CODE The Code applies to grievances, which are defined as "concerns, problems or complaints that employees raise with their employers". It does not apply to collective grievances, which are grievances raised on behalf of two or more employees by a recognised trade union or other appropriate employee representative. The Code indicates that employees should attempt to resolve grievances informally in the first instance. Failing that, they should report their grievance formally, by making a complaint in writing. This should be done without "unreasonable delay" and should set out the nature of the grievance. On receipt of a grievance, the employer is expected to arrange a formal meeting at which it can be discussed. The employee has a statutory right to be accompanied to any meeting by a colleague or trade union representative and must be given an opportunity to explain the grievance and how he would like it resolved. The employer is under an obligation to rearrange the meeting if the employee's representative is unable to attend at the time originally scheduled. Before reaching any decision on the grievance, the employer should consider whether further investigation is needed and, if so, adjourn the meeting pending such investigations. Once any further investigations have been completed, the employee should be told the outcome of his grievance in writing and without unreasonable delay. The Code recommends that the employer set out the action it is proposing to take to resolve the grievance. Employees should be told that they have a right to appeal against the outcome of their grievance, and if they wish to appeal they should do so in writing without unreasonable delay. There should then be a further appeal hearing, preferably chaired by a manager without previous involvement in the case, and the outcome of the hearing should again be notified to the employee without unreasonable delay.

7 Lovells Employment Group 4 Managing tricky issues PROBLEM AREAS The new regime is undoubtedly an improvement on the statutory procedures it replaces. In particular, ACAS has issued more detailed guidance called "Discipline and Grievances at Work" (the Guidance) to complement the Code. This is a welcome attempt to put some flesh on the bones of the basic processes. Having said that, there are a number of areas where the Guidance either raises more questions than it answers or, in some cases, seems to be contrary to the established position. This is unfortunate, especially given that the status of the Guidance is unclear. Whilst the Employment Tribunals are not required to have regard to it and it does not form part of the Code, it remains to be seen whether Tribunals will in fact look to the Guidance when seeking to establish whether there have been procedural failures. Some of the areas where we think employers may experience problems in operating the new processes are addressed below. Drawing up procedures The Code states that employees should be involved in the development of disciplinary and grievance processes. In addition, employee representatives should be involved "where appropriate". The logic behind this is that employees are more likely to accept and comply with procedures where they have been involved in drawing them up. In the past, particularly in businesses without a culture of employee representation, policy issues tend to have been seen as a matter for the employer and have been communicated to employees in their final form. It would seem extreme if in future the fact that employees had not been involved when policies were drawn up could render a dismissal unfair. However, it may be a relevant factor where, for example, an employer has treated a particular act of misconduct as gross misconduct and dismissed in circumstances where it was not clear from the disciplinary procedures that this was likely to be the outcome. In those circumstances, it may be easier for a Tribunal to say that there has been an unreasonable failure to follow the Code which means it is appropriate to award increased compensation. The "no-show" Employers are all too familiar with situations where an employee fails to attend a disciplinary hearing on one or more occasions, often because of a stress related illness. The Guidance appears to offer comfort for employers in this situation, saying "where an employee continues to be unavailable to attend a meeting, the employer may conclude that a decision will be made on the evidence available". This appears to allow an employer to consider a disciplinary issue, even though the employee is unable to attend a disciplinary hearing. However, the Code itself says that the employer should only take a decision without hearing what the employee has to say in circumstances where an employee is unable or unwilling to attend a hearing "without good cause". There seems to be a risk that if an employer takes disciplinary action without hearing the employee's side of the story, that will be found to be a breach of the Code, particularly where the employee is unable to attend on grounds of illness. It is difficult to see in those circumstances how it could be said that the employee is unable to attend "without good cause". Calling witnesses As indicated previously, the Code envisages that employees should be able to call witnesses to give evidence on their behalf at a disciplinary hearing. It would currently be unusual for witnesses to attend a hearing. It will clearly be risky in future not to allow the employee to call and examine witnesses if he or she asks to do so. Another issue that employers will have to address is whether the right to call witnesses is something which should be embedded in internal disciplinary processes. It is not clear whether it could be argued that failing to include it in the employer's disciplinary procedure breaches the Code. On the other hand, because of the practical difficulties that calling witnesses is likely to involve, employers may be reluctant to publicise the right. Time limits for warnings Following the Court of Appeal decision in Airbus Ltd v Webb, the Guidance tackles the thorny issue of when it will be unfair to take an expired disciplinary warning into account when deciding to dismiss an employee. The Guidance says that disciplinary warnings should generally be disregarded once they have expired "except in agreed special circumstances". Unfortunately, the Guidance does not elaborate on when such special circumstances may exist. One practical point that the Guidance makes concerns a pattern of behaviour whereby misconduct is repeated very shortly after the expiry of an earlier warning. This may mean that an employer is justified in imposing a warning of longer duration than would otherwise be the case. Appeals Although this is not covered in the Code itself, the Guidance makes it clear that it is not permissible to increase the sanction that has been imposed on appeal. It would be relatively unusual to find disciplinary procedures that allow the sanction to be raised on appeal, but those employers that do include such a power should review their policies and remove it. Overlapping disciplinary and grievance issues One of the real problems under the statutory procedures was how to deal with a situation in which an employee raises a grievance that overlaps with disciplinary action that the employer is taking.

8 Lovells Employment Group 5 The revised Code appears to give employers some flexibility in this regard, stating that if an employee raises a grievance during a disciplinary process, an employer "may" temporarily suspend the process in order to investigate the grievance. Alternatively, where the issues are related, it may be more appropriate to deal with them together. This seems to allow an employer to take a common sense approach without risking a compensation uplift. However, the Guidance gives some less helpful examples of situations where it may be appropriate to suspend action, such as allegations that the manager hearing the disciplinary is either biased or has a conflict of interest. It remains to be seen whether failing to suspend the disciplinary process in those circumstances would amount to a breach of the Code. If so, it would appear to give employees quite a lot of scope to disrupt and delay the disciplinary process. Criminal offences Occasionally an employer is faced with a situation where an employee is either charged with or convicted of a criminal offence outside the workplace. The Code makes it clear that disciplinary action in such circumstances should not be viewed as inevitable. Action is likely to be appropriate only where the charge or conviction has an impact upon the individual's ability to carry out their role. Having said that, difficult procedural issues can arise where the employee refuses to participate in an internal disciplinary process because they are worried about prejudicing themselves in related criminal proceedings. The Code itself does not deal with those concerns, but the Guidance is surprisingly bullish on the point. It says that such an unwillingness or refusal "should not deter an employer from taking action" and goes on to say that the employer does not need to wait for the outcome of any prosecution before taking disciplinary action. Whilst case law establishes that it will not necessarily be unfair to proceed in such circumstances, it is clear that every case depends upon its own facts and circumstances and the Guidance on this point seems, in our view, too firm. What is a grievance? As noted, one of the main issues in relation to the operation of the statutory procedures was what actually amounted to a grievance. Given the wide definition of grievance in the Code, this issue seems likely to continue to trouble Tribunals when they are assessing whether there has been an unreasonable failure by the employer to carry out a grievance procedure. It may be worth employers reviewing their grievance procedures and making it clear exactly what employees need to do to trigger the internal grievance procedure. In situations where employees are found to have raised a grievance, but have not complied with the employer's internal procedures, this may make it easier to show that even if there has been a failure to comply with the Code, it should not be seen as "unreasonable". Grievance outcomes Another practical issue is the extent of the information that an employer needs to give to the employee about how it is proposing to resolve a grievance that has been upheld. The issue typically arises where an employee has made a complaint of bullying or harassment against another member of staff. If the complaint is upheld, there will often be a question about the level of detail the employer needs to go into about the action it is proposing to take against the other employee in order to resolve the employee's grievance. For example, is it sufficient to say that disciplinary action will be taken against the other employee, or is the individual raising the grievance entitled to more information than that? Neither the Code nor the Guidance provide an answer. The Code says that the employer's response to a grievance "should set out what action the employer intends to take to resolve the grievance". The Guidance confirms that the employer should "set out clearly in writing any action that is to be taken". However, the employer will obviously have to weigh up his duties to the employee in respect of whom disciplinary action is to be taken, against those owed to the employee whose grievance has been upheld. In practice, employers are likely to continue to provide limited information about subsequent disciplinary action. Former employees To date, where a grievance was raised by a former employee about something that occurred during the course of employment, the employer could use the modified grievance procedure to deal with complaints. Neither the Code nor the Guidance deals with the question of how such grievances should be dealt with in future. There are three main options: use the full procedure; agree a truncated procedure; or argue that the procedure does not apply to post-employment grievances. It is a pity that the Guidance does not address the issue. By failing to adopt any procedure the employer clearly faces the risk of an uplift. Mediation A key message from the Code is that employers and employee should "always" try to resolve disciplinary and grievance issues internally before having recourse to the Employment Tribunal. There is also a suggestion that it will generally be appropriate to consider the use of mediation in an attempt to resolve an internal dispute. This message appears in the foreword to the Code and is not part of the Code itself. On that basis, employers should not face a financial sanction because they have not tried to mediate a dispute. This is clearly welcome in relation to disciplinary matters, where an employer will typically feel that a decision in relation to an employee's conduct, for example, is a matter of managerial prerogative and not amenable to

9 Lovells Employment Group 6 mediation. As recognised in the Guidance, mediation is more likely to be appropriate when dealing with grievances. It remains to be seen how widely this suggestion will be taken up. CONCLUSION The removal of the statutory dispute resolution procedures has been welcomed by employers. However, the impact of the repeal is limited by the retention of the power to increase or decrease compensation for failure to comply with the Code. The "principles based" nature of the Code, and occasional mismatch between the Code and the Guidance, also mean that there is still room for uncertainty about when a dismissal will be procedurally fair. We expect some of these uncertainties to be ironed out through Tribunal decisions on the Code requirements during Further, employers are unlikely to see a significant reduction in the number of grievances they have to deal with, given that the Code appears to require employees to raise a grievance before making a claim if they do not want to face a decrease in any compensation awarded to them. This will come as a disappointment to many employers, given the amount of management time that grievance hearings typically take and the relatively low proportion that are actually resolved within the workplace.

10 Lovells LLP and its affiliated businesses have offices in: Alicante Amsterdam Beijing Brussels Budapest* Chicago Dubai Dusseldorf Frankfurt Hamburg Ho Chi Minh City Hong Kong London Madrid Milan Moscow Munich New York Paris Prague Rome Shanghai Singapore Tokyo Warsaw Zagreb* Lovells is an international legal practice comprising Lovells LLP and its affiliated businesses. Lovells LLP is a limited liability partnership registered in England and Wales with registered number OC Registered office and principal place of business: Atlantic House, Holborn Viaduct, London EC1A 2FG. The word "partner" is used to refer to a member of Lovells LLP, or an employee or consultant with equivalent standing and qualifications, and to a partner, member, employee or consultant in any of the affiliated businesses who has equivalent standing. New York State Notice: Attorney Advertising Copyright Lovells LLP All rights reserved. LWDLIB02/JCB/ *Associated offices

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