Disciplinary, grievance and unfair dismissal issues: A JD Law guide

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1 Disciplinary, grievance and unfair dismissal issues: A JD Law guide

2 In an ideal world your business or workplace would be free from disputes and disagreements. All employees would perform perfectly and all managers would deal with employees in the appropriate manner. However, back in reality, most of us have experienced a workplace dispute from either the employee s or employer s perspective. This guide sets out the key points surrounding disciplinary and grievance issues and unfair dismissal within the workplace. This guide outlines some of the ways in which employers might address disciplinary and grievance issues, the rights employees have and the consequences of getting it wrong. Ultimately, disciplinary and grievance situations can have very serious consequences. Employees can lose their job and employers can incur huge costs as well as disenfranchising their workforce. If you are or think you may be in a disciplinary, grievance or unfair dismissal situation, please read this guide and then contact us. This guide provides general information only. It was prepared in March While every effort has been made to ensure that the content is accurate and up-to-date, nothing in this guide should be construed as representing legal advice.

3 What are disciplinaries? A disciplinary is the process followed where an employer takes action against an employee for a variety of reasons, including: Conduct; Performance; Absence; Internet, and telephone usage; or Timekeeping If minor incidents of misconduct or low performance are identified, these may be resolved informally in the first instance. However, in some cases, failure by employees to respect or adhere to these standards may result in formal disciplinary action being taken. The employee has the right to be accompanied by a work colleague or trade union representative to any formal disciplinary meeting and is also allowed to appeal against any formal decision made. Invitations to formal disciplinary hearings and the subsequent outcomes should always be communicated to employees in writing. It is also good practice to record minutes of meetings and ask employees to approve these. The type of action taken depends on the individual case but can include a formal written warning, a final written warning, demotion or dismissal. Again, the employer should have a written disciplinary policy as well as referring to the Acas Code of Conduct. A disciplinary process should set out to achieve the following key principles: Dealing with issues promptly, fairly and consistently; Carrying out any required investigations to gather the relevant facts of the case; Setting out the facts and findings to the employee in advance of the disciplinary hearing; and Allowing the employee to put their response forward.

4 What are grievances? Grievances are concerns, problems or complaints that employees raise with their employers. Grievances arise for many reasons, including: Wages, working hours and working conditions; Bullying by colleagues or management; Health and safety; Organisational change; Reporting any other form of wrongdoing; or Discrimination. Employees and employers are encouraged to resolve disputes informally in the first instance. If this does not resolve the problem, a formal grievance procedure should be followed. Most employers should have their own grievance procedures in place to help resolve any issues in-house in an effective and consistent manner. In addition, an employer should consider the Acas Code of Conduct when dealing with grievances. Where possible, individuals should try to resolve their grievances informally. A formal grievance procedure will ordinarily comprise the following steps: The employee should be asked to submit details of their grievance to their employer in writing. The employer should investigate the employee s grievance. The employee should then be sent a letter inviting them to a meeting to discuss their grievance and the findings of the employer s investigation. The employee should be advised of the outcome of their grievance in writing ideally within five working days of the grievance hearing. If the grievance is not upheld, the individual should be advised of their right of appeal. An employee has the right to be accompanied by a work colleague or trade union representative to the grievance hearing and appeal.

5 Unfair dismissal Occasionally an employer will be faced with the difficult decision of dismissing an employee. This may be following a disciplinary procedure or for reasons of redundancy. If an employee has more than two years continuous service then the employer must have a fair reason to dismiss them. The following reasons are identified in the Employment Rights Act 1996 as potentially fair reasons for dismissal: Redundancy Capability or qualifications (e.g. performance or fitness to work) Conduct, or Some other substantial reason (i.e. a justified business reason). Once the employer has established a potentially fair reason for dismissal, it must then act reasonably in treating that reason as sufficient to justify dismissal. Acting reasonably will involve many considerations and will vary according to the circumstances. In general terms, an employer should: Conduct the necessary investigations in a timely manner to establish the facts. Follow their grievance and disciplinary procedures in an effort to avoid dismissal wherever possible. Use a consistent and fair procedure when dismissing an employee. Ensure that clear rules and procedures surrounding dismissals are readily available to all managers and employees. Make sure that these rules and procedures are understood by all members of the workforce. In broad terms, a dismissal will be classed as unfair if the employer has either been unable to establish a potentially fair reason for the dismissal and/or the Employment Tribunal is of the view that the employer did not act reasonably in carrying out the dismissal. A dismissal is classed as automatically unfair (regardless of the length of service of the employee) if an employee is dismissed for certain specified reasons, including the following: Discriminatory reasons e.g. because of a protected characteristic such as sex, age, disability, race, religion or sexual orientation; Pregnancy including all reasons relating to maternity; Family reasons including the fact that an employee has exercised their rights to parental leave, paternity leave (birth and adoption) or adoption leave; The employee s membership of a trade union and/or trade union activities; Health and safety reasons; and The employee has made a protected disclosure, known as whistleblowing.

6 What is a constructive dismissal? Constructive dismissal occurs when an employee is forced to leave their job because of their employer s conduct. In order to demonstrate that a constructive dismissal has occurred, an employee must be able to show that their employer has (1) committed a serious breach of their contract of employment (for example by not paying their wages or alternatively, breaching what is known as the relationship of mutual trust and confidence ); (2) they have resigned as a consequence of that breach; and (3) they have not delayed too long in their resignation. How can JD Law help? At JD Law, our specialist employment team can prepare effective written grievance and disciplinary procedures, as well as train managers in how to handle disciplinary and grievance issues fairly. We can also advise you if you are going through a grievance or disciplinary process. We offer full support throughout an Employment Tribunal in the event you or your business are the subject of an Employment Tribunal claim for unfair dismissal. Our significant years of expertise in these areas means that we can provide tailored solutions for your business, making sure that you are in the best possible position to defend potential claims. For more details, please contact us on

7 Contact us To find out how we can help you, please contact our employment law specialists: Julian Fidler Nick Stott JD Law LLP, Fourth Floor, Thavies Inn House, 3-4 Holborn Circus, London EC1N 2HA The content of this guide should not be considered by any reader to comprise full proper legal advice. All information accurate at the time of going to print.

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