DISCIPLINARY AND GRIEVANCE PROCEDURES CASH PAYMENT WRITTEN WARNING. We provide an overview of what employers should include in their procedures.

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1 DISCIPLINARY AND GRIEVANCE PROCEDURES We provide an overview of what employers should include in their procedures. CASH PAYMENT Employers can dismiss an employee, even if they have not heard an outstanding appeal relating to a formal written warning. WRITTEN WARNING When considering whether a dismissal is fair, tribunals have to be satisfied that the written warning on which it was based had been issued in good faith.

2 Call us today on (01603) or Kathryn Hirst Partner Norwich / Reepham T (01603) F (01603) kathrynhirst@hansells.co.uk View me on LinkedIn IN BRIEF According to figures just published by the government, the number of tribunal claims received in October to December 2013 were down by 79 per cent compared to the same period in Follow HansellsHR On Twitter DISCIPLINARY AND GRIEVANCE PROCEDURES All employers should have disciplinary and grievance procedures in place to deal with problems and complaints that arise at work. The Acas code of practice, although not legally binding, sets out the standard that tribunals will take into account when deciding an unfair dismissal case and it is therefore advisable for employers to follow the code when drawing up their own procedures. What does the Acas code of practice state? With regard to disciplinaries, the code states that: Employers should carry out an investigation without delay to establish the facts, with different people undertaking the investigation and hearing the disciplinary (if possible). In some cases this will require holding an investigatory meeting with the employee before proceeding to any disciplinary hearing. There is no statutory right for an employee to be accompanied at a formal investigatory meeting, but it is good practice to allow the employee to be accompanied. Employers should inform employees in writing if there is a disciplinary case to answer, giving them enough information to allow them to answer the case at a hearing. If an employee is persistently unable or unwilling to attend a disciplinary meeting without good cause the employer can make a decision in their absence, on the evidence available to them. Employers should give employees the chance to put their side of the story before making any decisions. When giving written notification of the time and venue of the hearing, employers should include copies of any written evidence and inform the employee of their right to be accompanied at the hearing. At the meeting the employer should explain the complaint and go through the evidence. The employee should be allowed to set out their case, answer any allegations that have been made and have a reasonable opportunity to ask questions, present evidence and call relevant witnesses.

3 After the meeting the employer must decide whether disciplinary action is appropriate and inform the employee accordingly in writing. They should then allow employees to appeal the decision. 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. With regard to grievances, the code states that: Employees should first try to sort out their grievance informally. If that does not resolve matters, they should set out the potential grievance in writing and without unreasonable delay with a manager who is not the subject of the grievance. Employers should then arrange for a formal meeting to be held as soon as possible. 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. 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. Once the meeting has taken place, the employer should set out their decision in writing, and, where appropriate, make clear what action they intend to take to resolve the grievance. The employee should be told that they can appeal if they are not happy with the decision. The appeal should be heard as soon as possible, at a time and in a place that the employee has been told in advance. It should be dealt with impartially and wherever possible by a manager not previously involved in the case. The code recommends in general that: Employers and employees should raise and deal with issues promptly and should not unreasonably delay meetings, decisions or confirmation of those decisions. Employers should allow employees to be accompanied at any formal disciplinary or grievance meeting. The code does not apply to redundancy dismissals, non-renewal of fixed-term contracts or grievances raised on behalf of two or more employees by a representative of a recognised trade union or other appropriate workplace representative. These grievances should be handled in accordance with the organisation s collective grievance process.

4 CASH PAYMENT When deciding unfair dismissal claims, tribunals have to consider whether the employer acted reasonably in all the circumstances. In Rooney v Dundee City Council, the Employment Appeal Tribunal (EAT) held that it was within the range of reasonable responses for an employer to dismiss an employee, even though they had not heard an outstanding appeal relating to a formal written warning. What happened? In August 2010 Ms Rooney, a cashier supervisor, took payment of 10,000 from a member of the public for arrears of rent, contrary to instructions from her manager. Following a disciplinary hearing in September, she was given a final written warning lasting 15 months. She lodged an appeal but for various reasons, it was never heard. In December 2011, Ms Rooney failed to follow instructions again, this time over a failure to balance her cash box on time and ended up in an argument with another member of staff and her manager. The Council went ahead with a second disciplinary hearing in March 2012 at which she was dismissed, although her appeal against the final, written warning had still not been heard. The officer hearing the appeal carried out a complete review of the first disciplinary process to ensure it was fair. She agreed that the final written warning was justified and could see no reason to ignore it. She accepted that Ms Rooney would not have been dismissed had it not been for the live warning. Ms Rooney claimed unfair dismissal. The tribunal judge said that the question he had to answer was whether the Council entertained a reasonable suspicion amounting to a belief in the guilt of the employee of that misconduct at that time and found that it had. Although he would not have taken the same approach and found the decision harsh, the judge concluded that it was one that the Council was entitled to come to. As it was within the range of reasonable responses for an employer to make, the dismissal was fair. The EAT said that the employment judge had applied the correct test - whether it was within the range of reasonable decisions that an employer might make knowing that the appeal against the final written warning had not been heard. Although concerned that the appeal had not been heard at the date of dismissal and that he might not have come to the same decision, the judge had also been mindful of the fact that he must not substitute his own view for that of the employer. In applying the range of reasonable responses test to decide whether the decision was fair, the judge had considered both the decision to proceed without hearing the appeal and the decision to dismiss. The judge had carefully - and correctly - applied the law and taken into account the outcome of the decision for Ms Rooney. He took the view that it was an outcome which was within the range of reasonable responses and his decision that the dismissal was fair should be upheld.

5 WRITTEN WARNING When considering whether a dismissal is fair, tribunals can take into account whether it was reasonable for the employer to have issued a final written warning. In Adegobola v Marks and Spencer plc, the Court of Appeal held that although it was not for the tribunal to sit in judgment on the substantive matters on which the written warning was based, it did need to be satisfied that it had been issued in good faith. What happened? In July 2010, Ms Adegobola, a customer assistant at the M&S store in Wimbledon, was disciplined for an incident involving another member of staff for which she received a final written warning. Three months later, she was involved in an argument with a manager. A few days after that, M&S was notified that someone (who turned out to be Ms Adegobola s sister in law) was claiming VAT on goods she had purchased with Ms Adegobola s store card. The investigating officer, who was asked to look at both matters, concluded that there was a case to answer in relation to the argument with the manager, but not in relation to the store card. This was despite the fact that Ms Adegobola admitted that she had resold goods purchased with the card, contrary to the terms of issue, and signed notes of the interview to that effect. At the disciplinary hearing in November, however, she denied that she had bought goods to resell but could not explain why she had signed the notes of the interview saying that she had. She was dismissed at that hearing and her appeal against dismissal a month later was rejected. Ms Adegobola brought a claim for unfair dismissal on the basis that the same managers had been involved in the first disciplinary hearing that led to the final written warning and the second hearing that led to her dismissal. Although it would have been better practice for different people to be involved in the two disciplinary hearings, the tribunal was satisfied that Ms Adegobola would have been dismissed anyway. This was partly because she had admitted to misusing her staff discount card and partly because of the existing final written warning (which it could not look into as it did not have jurisdiction to do so). The EAT rejected her appeal. The Court of Appeal held that although it was not for the tribunal to sit in judgment on the substantive matters on which the written warning was based, it did need to be satisfied that it had been issued in good faith; that there were at least prima facie grounds for imposing it; and that it must not have been manifestly inappropriate to issue it. In this case, the tribunal had found that Ms Adegobola could have been dismissed for gross misconduct for the discount card incident alone, never mind the second offence or the first written warning. It could not have arrived at that conclusion if it had not considered the question of good faith and the allegations made by Ms Adegobola and rejected them. The Court therefore rejected the appeal.

6 IN BRIEF According to figures just published by the government, the number of tribunal claims received in October to December 2013 were down by 79 per cent compared to the same period in 2012 and 75 per cent fewer than last quarter. The number of claims received in the period from October to December 2013 was just 9,801 compared to an average of 50,000 new claims per quarter in 2012/13. The number of single cases lodged in July 2013 fell from nearly 7,000 to 1,000 cases in September Although some commentators have concluded that the drop is due to the introduction of tribunal fees at the end of July 2013, the government has urged caution when interpreting the figures and says that the data in the report, Tribunal Statistics Quarterly, may be revised in the next official publication due to come out on 12 June It also warns that, under the business processes to facilitate fee-charging, a claim is not entered onto the internal case management system from which statistical data are extracted until the relevant fee is paid or remission application granted. This means there may be a number of claims presented post July 2013, but only formally accepted at a later stage (for example after a remission application is granted). The report also found that: the trend in single claims has been declining for the last five years, while the trend in multiple claims is more volatile due to large numbers of claims against a single employer which can skew the national figures and have to be resubmitted each quarter employment tribunals disposed of 34,767 claims during October to December 2013, 36 per cent higher than the same period in 2012 the number of disposals for single claims decreased by 32 per cent, while the number for multiple claims more than doubled. [Back to contents ] Disclaimer: This newsletter is a summary of legal issues not intended to provide specific legal advice nor intended to be comprehensive. If advice is required please contact your solicitor. This transmission is intended solely for the addressee (s) and is confidential.if you are not the named addressee, or if the message has been addressed to you in error, you must not read, disclose, reproduce, distribute or use this transmission Delivery of this message to any person other than the named addressee is not intended in any way to waive confidentiality. If you received this transmission in error please contact the sender or delete the message. List Maintenance To unsubscribe from this service kathrynhirst@hansells.co.uk of for further information call