Chapter 1 - Disciplinary and grievance procedures

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1 Chapter 1 - Disciplinary and grievance procedures 1.1. What s happened to the statutory procedures? Why were they abolished? What has taken their place? What are the key changes? The new ACAS code What is the new ACAS Code of Practice? What is its legal status? Is it good news? What could happen if we don t follow it? Disciplinary matters - the code What do we do first? What happens if we decide on a disciplinary hearing? When can we start the disciplinary hearing? Does the employee have a right to be accompanied at the hearing? What format should the hearing take? What can we do if the employee doesn t show up? What should we do after the hearing? What do we need to consider when issuing a written warning? Does the employee still have a right of appeal? What if the employee has committed a criminal offence? Grievances - the code How do we handle a grievance? Do we need to arrange a meeting? Does the employee have the right to be accompanied? Are there any restrictions on this right? What should we do after the meeting? What happens if the employee appeals? What happens if an employee raises a grievance during the disciplinary process? What about grievances raised by a trade union representative?...14 III

2 1.5. The supplementary ACAS guidance Is there any other guidance we should follow? What is its legal status? What are its main points? What could happen if we don t follow it? Disciplinary matters - the guidance What does the guidance say about formality? What does the guidance say about procedures? What will a tribunal expect to see in our procedures? What records does the guidance say we should keep? How does the guidance say we should investigate a disciplinary matter? How does the guidance suggest how we should prepare for a disciplinary hearing? What does the guidance say about failure to attend a disciplinary hearing? Is there any guidance on how to conduct the hearing? What does the guidance say about specific problems? What does the guidance say about the right to be accompanied? What does the guidance say we should consider after the disciplinary hearing? What does the guidance say about disciplinary penalties? What does the guidance say about the appeals procedure? What else does the guidance say about appeal hearings? Grievances - the guidance How can the guidance help us to develop rules and procedures? What does the guidance say about the right to be accompanied? What guidance is offered about grievance meetings? Does the guidance give any other recommendations? Chapter 2 - Mediation and the new ACAS Code of Practice 2.1. Mediation: an overview What is mediation? What is its relationship to the ACAS Code of Practice? Is mediation compulsory? What s the mediator s role in the process? What s the legal status of mediation? IV

3 How much money can mediation save us? Are there any other advantages for us? Are there any disadvantages? Is mediation suitable for smaller businesses? Mediation in the workplace What types of dispute can be resolved via mediation? Are any disputes not suited to mediation? Must we tell employees about the possibility of mediation? When can we start mediation? Can we select a mediator from within our business? When should we use an external mediator? How much can we expect to pay? How can we persuade a reluctant employee to take part in mediation? Why is confidentiality so important? What if there s a problem after mediation? Choosing an internal mediator What type of person makes a good mediator? What personal skills do they need? Why must they be impartial? Do they need any formal training? Selecting external mediators How do we find a suitable mediator? What should we look for? What questions should we ask them? When do we pay the mediator? Does the employee share the cost? The mediation process Why is the room set-up so important? What are the stages of mediation? Are there any other points we need to remember? Is mediation legally binding? How long should the process take from start to finish? Troubleshooting The employee wants to bring a workplace companion - do we let them? How do we break a deadlock? What s the best way to deal with a nervous employee? How do we deal with anger? If it all goes wrong can the mediator give evidence on our behalf? V

4 Chapter 3 - Avoiding and managing employment tribunal claims 3.1. Who can bring a tribunal claim? When will this situation arise? What claims can a tribunal hear? Can anyone bring a tribunal claim? What is meant by employment status? What claims can a worker pursue? Must individuals be employed at the point they start a tribunal claim? How does a claimant prove they have been discriminated against? What can we do to prevent a discrimination claim from arising during recruitment? We ve received a discrimination questionnaire. Will a tribunal claim follow? What questions might the claimant ask in a discrimination questionnaire? How are these different to equal pay questionnaires? Should we ignore any questionnaires? What should we put in our response? Starting a tribunal claim How is a tribunal claim started? So they don t need to use a solicitor if they don t want to? Can they get Legal Aid to go to tribunal? What does making a claim entail? Is it true that a claim can be made online? How will we know if a claim has been made against us? What is the ET3 used for? Which tribunal will deal with the case? What happens if the claimant sends the claim to the wrong tribunal? Is there a time limit for filing a claim? Will a tribunal ever accept a claim outside these limits? Once a claim is lodged, can the tribunal stop it from going to a full hearing? How long will it take before the case is heard? Responding to the claim How do we respond to the claim? What will make the claim invalid? What should our defence include? What is the time limit for filing a defence? Can we ask for an extension of time? What documents should we send with the ET3? Can we alter our response once it has been sent to the tribunal?...67 VI

5 3.4. ACAS and the statutory conciliation process What is ACAS? What is conciliation? Do we have to pay ACAS for its assistance with conciliation? Will ACAS always get involved? When will ACAS contact us? Will ACAS take our side? Do we have to speak to the conciliator? If we settle, must we admit liability? Could our representative deal with ACAS on our behalf? What happens if we refuse to conciliate? How does conciliation work? Can we attempt conciliation any time up to the tribunal hearing? Will ACAS tell me what figure to offer? If we agree to settle, is it formalised? What are the advantages of conciliation? If we don t settle, can our discussions with ACAS be divulged at the tribunal hearing? Using compromise agreements to your advantage What is a compromise agreement? When can we use a compromise agreement? What types of claim can be settled via a compromise agreement? So can we just draft an agreement and ask the employee to sign it on the spot? Must we pay for their legal advice? Must employment be terminated for a compromise agreement to exist? What are the main advantages of compromise agreements? Preparing for a tribunal hearing How much time will we have to prepare for the hearing? Can we ask the tribunal not to list the case for a particular date? What happens if a witness is unavailable for a hearing date? How many days will the tribunal allow for the hearing? How do we best prepare for the hearing? Must we prepare written witness statements? How is a statement set out? What sort of evidence will be important? How do we present documents at the tribunal? Do tribunals look at the entire bundle? Can we present video or audio evidence? Which documents will the tribunal read before the hearing? VII

6 3.7. At the tribunal hearing Who hears the claim? What is it like inside a tribunal? Can we visit a tribunal? Are the press allowed in to hear a case? Will the case definitely go ahead and finish on time? What happens if the case is not completed on time? Will we get a decision on the day the hearing finishes? Will we get a written copy of the judgment? If we lose, will compensation be decided on the same day? Must we be represented? If we represent ourselves, will that put us at a disadvantage? If we choose to be represented, must this person be legally qualified? If we start defending the case ourselves, can we decide to use a solicitor later? What is hearsay evidence? Can a witness be forced to attend if they initially refuse? If a witness does not attend will the tribunal still read their statement? If a major witness is ill on the day of the hearing, can we ask for a postponement? Can we still settle once we turn up at tribunal? Are the panel members influenced by appearance and demeanour? What could irritate the panel? If we win, can we ask for costs? How much can be awarded for our costs? If we lose, can we appeal? Common concerns Is it true that we have to make opening and closing submissions? If so, what are they? We re worried about conducting cross-examination. What should we do? How do we request a break? Our witness has a physical disability, what should we do? Our witness does not speak good English, can we bring an interpreter? Appendix - useful links VIII

7 Chapter 4 - Documents Disciplinary procedure Capability procedure Grievance procedure Notification of disciplinary hearing Notice of performance review meeting Warning of poor performance Notification of potential dismissal meeting Dismissal on notice due to unsatisfactory performance/conduct letter Dismissal with notice letter (misconduct) Notice of disciplinary appeal hearing Specimen agreement Mediation checklist Letter inviting employee to mediation Letter requesting information from an external mediator Mediation policy ACAS code of practice Compromise agreement Equal opportunities and dignity at work policy Job description Person specification Sample Form cot Sample witness statement IX

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