HR ADVISORY BULLETIN 1. Discipline & Grievance

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1 HR ADVISORY BULLETIN 1 Discipline & Grievance V1 January 2012 Protect

2 DISCLAIMER The information contained within this pamphlet is for guidance only. The purpose of this pamphlet is to provide information and reflects our understanding of legislation at the time of writing. We do not accept any responsibility for any results obtained from the use of this information, expressed or implied. As such, it should not be used as a substitute for legal advice. HR ADVISORY BULLETIN 1 Page 2 of 9

3 CONDUCTING DISCIPLINARY PROCEEDINGS Prior to the ACAS code of practice, were the Statutory Disciplinary & Dismissal Procedures which were in force from October 2004 until April These laid down that if an employer had failed to follow the correct procedural route, notwithstanding the fact that there may have been a perfectly fair reason for disciplining or dismissing, a disgruntled employee would have been able to issue a claim of automatic unfair dismissal, meaning that if the Claimant went to the Tribunal and was successful, the Tribunal had to increase any award by 10% and could have increased it by up to 50%. Let us look at a couple of scenarios: Problem Arises So, a problem arises, for example, various absences, say Mondays and Friday afternoons, different excuses, and various minor ailments. Another one, you could have had two employees either having an argument or fighting in the work place or another example of misconduct would be money going missing from a particular shift. When a problem arises and the information comes to your attention, you need to consider what to do. Length of Service? One issue you need to consider is the length of service of the employee. For employees with over 51 weeks length of service or for employees with less than 51 weeks but who may be covered by discrimination legislation (The Equalities Act 2010) i.e. pregnant woman or employee who may be classed as disabled it is essential that a full and fair procedure be carried out. It is good practice to follow a full disciplinary procedure for all employees as this gets you in to the habit of doing so. Whether to suspend? Another question to be considered is whether to suspend the employee, if, for example, money is going missing or there has been an incident involving a dispute between employees, then you as the employer have to consider whether you want to get the employee off site. If so the employee should be informed that they are suspended, that suspension is not a disciplinary sanction it is a neutral act, and the suspension will last for a short period of time whilst an investigation can be carried out, this should be confirmed in writing. Always consider what alternatives, if any, there are to suspension i.e. deployment to a different site. If on the other hand the reason for inviting the employee to a disciplinary hearing is because of regular but unrelated absences, you may not want to suspend because your aim is to get more, not less work out of the employee. Is further information needed? So, we are at the stage where an incident has come to your attention and you may or may not have suspended the employee. It is important to carry out necessary investigations of potential disciplinary matters without unreasonable delay to establish the facts of the case. In some cases, this will require the holding of an investigatory meeting with the employee before proceeding to any disciplinary hearing. In others, the investigation stage will be the collation of evidence by the employer for use at a disciplinary hearing. In child protection related cases the advice of the Local Area Designated Officer (LADO) should be sort before proceeding with any investigation. HR ADVISORY BULLETIN 1 Page 3 of 9

4 In misconduct cases, where practicable, different people should carry out the investigation and disciplinary hearing. This is to evidence that the person investigating the issue is not then the person who makes the decision. If there is an investigation meeting, this should not by itself result in any disciplinary action. Whilst there is no statutory right for the employee to be accompanied at an investigatory meeting, such a right may be allowed under an employer s own procedures. Invite the Employee to a Disciplinary Meeting So, you have carried out an investigation and if you have come to the decision that there is a case to answer then you should write to the employee inviting them to attend a disciplinary meeting. The letter should include sufficient information about the alleged misconduct or poor performance and the possible consequences of the meeting to enable the employee to prepare to answer the case at the disciplinary meeting. Copies of any witness statements taken should be included with the letter. Information regarding the time, date and venue of the disciplinary meeting, who will be chairing the meeting and who will be taking notes should be included, Right to Accompaniment The employee should also be informed of his/her right to be accompanied. It is also sensible to ask the employee to confirm their attendance say, 2 days before the meeting and to inform who will be accompanying them. If the employee has been suspended and been told not to contact the company or told not to contact other workers, the company should offer to arrange for the person requested to accompany to be there if he or she agrees. The ACAS Code of Practice details that the chosen companion may be a fellow worker, a Trade Union representative or an official employed by a Trade Union. Most employers will not allow a legal representative such as a solicitor to attend. However, in certain circumstances there may exist a right to legal representation. Advice should be sought on a case-by-case basis. The Disciplinary Meeting So we get to the disciplinary meeting, the employer should have provided all the relevant information by way of witness statements and detail of the allegations. At the meeting the employee should be asked if they have any explanation for the alleged misconduct or unsatisfactory performance or, if there are any special circumstances to be taken into account. If it becomes clear at this stage that the employee has provided an adequate explanation, or there is no real evidence to support the allegation, the proceedings should be brought to a close. The approach should remain formal and polite and the employee should be encouraged to speak freely with a view to establishing the facts. A properly conducted disciplinary meeting should be a two way process, questions should be asked to clarify the issues and to check that what has been said is understood, for example, open ended questions such as what happened next? to get the broad picture and the employer should ask precise closed questions requiring a yes or no answer when specific information is needed. Decide on Appropriate Action If new facts emerge, it may be necessary to adjourn the meeting to investigate them and reconvene the meeting when this has been done. At the end of the meeting, the main point of the discussion should be summarised to bring together the nature of the offence, the arguments and HR ADVISORY BULLETIN 1 Page 4 of 9

5 evidence put forward and to ensure that nothing is missed the employer should ask the employee if they have anything further to say. This should help demonstrate to the employee that they have been listened to and treated reasonably. The disciplinary meeting should then be adjourned before a decision is taken about whether a disciplinary sanction is appropriate. Such adjournment allows time for reflection and proper consideration. It also allows for any further checking of any matters raised, particularly if there is a dispute over the facts. After the meeting, the employer should decide whether or not disciplinary or any other action is justified and informs the employee accordingly in writing. If a decision is taken to dismiss, such a decision 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 the right to appeal. Employees with one year s service or more have the right to request a written statement of reasons for the dismissal and a woman who is dismissed during pregnancy or maternity or adoption leave is automatically entitled to the written statement without having to request it, irrespective of length of service. Right to Appeal The opportunity to appeal against the disciplinary decision is essential to natural justice and it is important that this addressed seriously by the employer. The appeal may either be a review of the disciplinary sanction or a re-hearing depending on the grounds of the appeal. An appeal must never be used as an opportunity to punish the employee for appealing the original decision and it should not result in any increase in penalty as this may deter individuals from appealing. HR ADVISORY BULLETIN 1 Page 5 of 9

6 GRIEVANCES A grievance is a concern, problem or complaint that an employee raises with his employer. Most grievances will concern issues that are within an employer s control i.e. treatment afforded to employees by management or other employees, but sometimes the issue may be in respect of the behaviour of clients or customers. All grievances should be treated in the same way regardless of the subject matter. The ACAS Code of Practice on Disciplinary and Grievance Procedures forms the basis of the procedure which employers and employees must follow in the event that an employee wishes to raise a grievance. It is in everyone s interests that grievances are resolved quickly, fairly and efficiently to maintain staff morale within the workplace. As an employer it is vital to have written grievance procedures in place which give both you and the aggrieved employee a mechanism through which the grievance can be aired and, hopefully, resolved. Whilst many grievances can be and are resolved informally, those that cannot may be pursued formally by the employee. Written policies should make clear how formal grievances should be made and how grievance hearings will be handled, to protect both parties. If the employer mishandles a grievance, the compensation could be substantial and so it is advised expert advice is taken in such situations. What if a grievance is raised during a disciplinary case? In the course of a disciplinary process, an employee might raise a grievance that is related to the case. If this happens, the employer should consider suspending the disciplinary procedure for a short period while the grievance is dealt with or you may decide to deal with the grievance in parallel with the disciplinary process and hear the grievance before the disciplinary. Depending on the nature of the grievance, the employer may need to consider bringing in another manager to deal with the disciplinary process. In small organisations this may not be possible, and the existing manager should deal with the case as impartially as possible. Why have grievance procedures? Grievances are concerns, problems or complaints that employees raise with their employers. Grievance procedures are used by employers to deal with employees grievances. Grievance procedures allow employers to deal with grievances fairly, consistently and speedily. Employers must have procedures available to employees so that their grievances can be properly considered. Ensuring that people are treated fairly and reducing the scale of conflict are important factors in the creation of a productive working environment. Employers and employees should seek informally to resolve most matters that arise in the course of the working relationship. This approach helps minor concerns to be resolved speedily without the need to recourse to formal action. It also limits disruption to work and reduces any personal embarrassment in discussing issues of concern. This has advantages for all workplaces, particularly where there might be a close personal relationship between a manager and an employee. It also allows for problems to be resolved quickly. If a grievance cannot be settled informally, the employee should raise it formally with management. There is a statutory grievance procedure that employees must invoke if they wish subsequently to use the grievance as the basis of certain applications to an employment tribunal. HR ADVISORY BULLETIN 1 Page 6 of 9

7 Disciplinary and grievance procedures are essential when informal mechanisms are ineffective, or where they are inappropriate given the nature of the issue arising. These procedures can also help prevent unnecessary staff turnover and absenteeism, as well as avoiding costly and time-consuming tribunal cases. It is essential that those implementing these procedures have the necessary training and guidance to do so, in line not just with minimum legal obligations but also with the principles of fairness and natural justice reflected in the ACAS Code. Grievance Procedure Under the ACAS Code of Practice, employees should: Step One - Inform the employer of their grievance in writing. Step Two - Be invited by the employer to a meeting to discuss the grievance where the right to be accompanied will apply and be notified in writing of the decision. The employee must take all reasonable steps to attend this meeting. Step Three - Be given the right to an appeal meeting if they feel the grievance has not been satisfactorily resolved and be notified of the final decision. HR ADVISORY BULLETIN 1 Page 7 of 9

8 FLOW CHART OF THE DISCIPLINARY PROCESS Misconduct issue identified Initial Fact Finding Investigation Decision on Action Required Informal Investigation Formal Investigation No Action Required 1:1 meeting with manager Discussion on Action Final note of outcomes on personnel/ supervision file Formal Disciplinary Action Step 1: Inform employee and invite to meeting (hearing) Step 2: Hold meeting (hearing), confirm outcomes and right to appeal Step 3: Hold appeal meeting (hearing) and confirm outcomes HR ADVISORY BULLETIN 1 Page 8 of 9

9 CASE STUDY CASE 1: You come in on Tuesday morning to be told by another manager that two members of your team had a heated argument on their way out last night. Apparently Gary bought a car from Tony but is now refusing to pay all the money as he thinks there is something wrong with the car. Gary comes into work with a black eye. You ask him what happened and he said Tony punched him downstairs at reception. The incident has been reported to the police. Tony is due in soon, what action are you going to take? CONSIDER 1. Are you going to suspend? 2. Is this Gross Misconduct? 3. If someone is guilty of gross misconduct, will you take informal or formal disciplinary action? CASE 2: You dismiss someone during a Disciplinary Hearing and whilst you are confident of the decision you have made, you neglected to follow correct procedure and did not conduct an investigation prior to the hearing. The employee seeks advice from a solicitor. What can the employee claim against the company? CASE 3: Theresa Green works for Fred Thimble Makers Limited. Theresa has worked at the Company for three years as a Secretary/Receptionist. In the last year, she received a verbal warning following the disciplinary process for lateness. She received a written warning for being rude to a client after a disciplinary process. She received a final written warning again for lateness and a couple of weeks after receiving the final written warning she is late again. What action do you take? Can Theresa be dismissed? On what grounds? HR ADVISORY BULLETIN 1 Page 9 of 9