Grievance. Informal Resolution? Identifying Grievances. Potential Claims. Verbal Grievances DISCIPLINE AND GRIEVANCE WORKSHOP

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1 Grievance Any concern, problem or complaint that an employee raises with their employer DISCIPLINE AND GRIEVANCE WORKSHOP Why important? Staff morale Employment tribunal claims Constructive unfair dismissal Discrimination ACAS Code Brodies LLP Paul McMahon, Partner EVH Conference 3 5 October 2014 ABERDEEN EDINBURGH GLASGOW BRUSSELS Identifying Grievances Be alert to: Written communications e.g. s No need for signature / meeting request / mention of grievance No need to comply with internal procedure Via third parties Appraisal forms / exit interviews Client / customer relationships Informal Resolution? Procedures should encourage informal resolution Employees may be penalised for failing to attempt informal resolution If handling informally:- Make employee aware of rights Obtain agreement to informal process Deal with grievance informally Confirm employee satisfied with outcome and confirm in writing Verbal Grievances Potential Claims Failure to submit written grievance does not bar tribunal claim Verbal grievance:- Does employer still need to comply with ACAS Code? Does it raise potentially serious issues which could form the basis for a claim to an employment tribunal? Constructive unfair dismissal Discrimination ACAS Code uplift Other claims

2 Grievance Hearer Arranging a meeting Independence Seniority Appeal Training Arrange for a formal meeting In writing? Consider location and timing Without unreasonable delay ACAS Guide 5 working days Timescale in policy? Constructive dismissal risk Delay due to sickness absence? Preparation for meeting Who can accompany an employee? Note-taker Similar grievances? Special arrangements? Every effort to attend Statutory right: colleague / trade union representative Reasonable paid time off to act as companion Role of companion Relatives/friends/solicitor(!)? Conduct of meeting Introduce those present, remind of right to be accompanied Comfortable, read procedures, received documents? Confirm note-taking arrangements Disabled? Allow employee to explain grievance and how they think it should be resolved Obtain detail and evidence eg. documents / witnesses Summarise and confirm next steps and timings Discuss confidentiality Adjourn to investigate or consider decision Investigation Who should investigate? What will the investigation involve? Summary Direction of complaint? Documents Witness statements confidentiality, representation? Further meeting with employee? Neutral approach Reasonable timescale Minutes Report

3 Decision Appeal Decide on appropriate action Communicate the decision in writing without unreasonable delay Describe investigation Respond to all issues If not upheld explain reasons If upheld explain action Consider grievance outcome meeting Inform of right to appeal and process In writing without unreasonable delay Verbal appeal? Hear appeal without unreasonable delay Notify in advance of time and location Appeal hearer? Right to be accompanied Communicate outcome in writing without unreasonable delay Former Employees Collective Grievances Resignation letters References Consider on a case by case basis Grievance raised on behalf of two or more employees by a representative of a recognised trade union or other appropriate workplace representative ACAS Code does not apply Handle in accordance with collective grievance process Disciplinary Action ACAS Code Misconduct Gross misconduct Risks Unfair dismissal Constructive unfair dismissal Discrimination Breach of contract Applies to disciplinary situations Misconduct Poor performance Does not apply to redundancy or non-renewal of fixed-term contract (but fair procedure must still be followed) Ill-health, retirement, some other substantial reason?

4 Risks Informal action Failure to follow ACAS Code in disciplinary situation:- Unfair dismissal Highly relevant factor Potential uplift in compensation Other claims arising from dismissal / disciplinary action Employees with insufficient service to bring an unfair dismissal claim? ACAS Code alone may not be sufficient Wherever possible Informal approach:- Talk to employee in private Reason for problem? Listen Agree action, review, timescales Keep record, confirm agreement in writing Review progress Consider adjourning if more serious Disciplinary investigation Who should investigate? Role of investigator How much investigation? Reasonable in all the circumstances Unfair dismissal / uplift risk Serious allegations? Even-handed Fishing expedition Reasonable timescale Suspension? Not automatic Potential threat to employer or other employees? Proper investigation not possible? Can it be avoided? Serious allegations? If you suspend:- Full pay Brief as possible and kept under review Not disciplinary action Follow up in writing Statement to colleagues / third parties? What will the investigation involve? Interviewing witnesses Identify issues / allegations Investigatory meeting Investigate explanations Witness statements Physical evidence Evidence direct or circumstantial? Can evidence be trusted? Length of service, work performance, disciplinary history Similar situations and sanctions Can be unpredictable Introduce parties, explain note-taking Explain nature of meeting Discuss confidentiality / disclosure Establish basic facts Explore circumstantial evidence Explore relationships Listen, consider follow-up questions

5 Conflicting Evidence Reluctant Witnesses Corroboration? Test credibility Opportunity and ability to observe? Guarded / hostile? Level of detail? Character / background of witness? Relationship with accused / accuser? Establish reasons Implied duty of good faith / fidelity Consider alternatives May need to continue without input Investigation Report Notification of disciplinary hearing Keep records Report Remit Issues investigated Steps taken Key findings Conclusions on whether case to answer, not on guilt / innocence! Formal disciplinary action required? Notify in writing Detail allegations, basis for allegations, possible consequences Include written evidence, witness statements Time, date, venue, right to be accompanied Copy disciplinary procedure Disciplinary Personnel Separate investigator / disciplinary hearer Suspension Authority to dismiss Note-taker Right to be accompanied Trade union representative / colleague reasonable request Internal procedure / reasonable adjustment Legal representation? Role of companion Employee fails to attend Persistently unable or unwilling to attend without good cause can make decision on evidence available Persistent? With good cause? Adjourn for a reasonable time Obtain medical advice Fit to attend hearing? When likely to be? Fit to participate in alternatives? No reasonable alternative invite written submissions

6 Procedure at hearing Witnesses at the hearing Introduce parties; right to be accompanied Comfortable, read procedure and documents Confirm note-taking Explain purpose of meeting, complaint and evidence Allow employee to set out case and answer allegations Listen. Request clarification if necessary. Reasonable opportunity to ask questions; present version of events; and produce evidence in support Prompt for mitigation Reasonable opportunity to call relevant witnesses Summarise and request clarification. Ask if anything further. Adjourn for further investigation or decision Remain polite and calm Reasonable opportunity to call relevant witnesses Actively draw to employee s attention? Employee to give advance notice Balance employee / employer witnesses? Employer to give advance notice Cross-examination? Refusal to attend Disciplinary decision Inform the Employee Fair and reasonable decision Fair procedure? Do you:- Believe employee is guilty of misconduct? Have reasonable grounds for that belief? Consider that as much investigation has been carried out as is reasonable in the circumstances? Regard to explanation / information / mitigation? Sanction imposed on others in past? Disciplinary policy indicate likely penalty? Live warnings? Expired warnings? Level of warning? Period of warning? Is dismissal a fair sanction? Alternatives? Training / support / adjustments? Inform in writing:- Allegations and findings Factual basis and reasons for decision Action being taken Warning Nature of misconduct and change in behaviour required (with timescale) How long will it remain current Consequences of further misconduct within period Record of warning Dismissal reasons, date contract will end, period of notice Right of appeal and process Appeal process Time limit? Grounds for appeal should be set out in writing Hear without unreasonable delay, at agreed time and place Appeal hearer? Access to evidence, notes from disciplinary meeting, disciplinary outcome letter Should not confer with disciplinary hearer Right to be accompanied Appeal decision Freedom to change decision Remove from record Reinstate employee Increase in penalty? Inform of outcome in writing, with reasons

7 Police involvement Duty to report alleged criminal conduct? Prevent employee from returning to work? Commence disciplinary proceedings? Await outcome of police investigation? Refusal to talk? Implications of acquittal? Other issues Minutes and Record Keeping Keep written records Retain all relevant documentation Record rationale for decisions Data Protection Act:- Confidential Used only in connection with purpose for which obtained Kept for no longer than necessary Caution: tribunal disclosure! Audio recordings? Contact Paul McMahon Partner Brodies LLP