Discipline and grievance procedures

Return t previus page Hme > Emplyment Law at Wrk > FAQs Discipline and grievance prcedures Member resurce The law is stated as at 06 April 2009 Please click n the individual questins belw t see the answers. What legislatin cvers discipline and grievances at wrk? Mst f the prvisins gverning discipline and grievances at wrk are histrically fund in: the Emplyment Act 2002 the Emplyment Act 2002 (Dispute Reslutin) Regulatins 2004 (SI 2004/752) Aspects f this legislatin which cver the statutry dispute reslutin prcedures have been widely criticised and althugh the prcedures had nly been in frce fr under five years they were repealed in their entirety frm 6 April 2009 under the Emplyment Act 2008. Therefre frm 6 April 2009 the imprtant prvisins gverning discipline and grievances at wrk are t be fund in: 2008. the Emplyment Act 2008, and the Emplyment Tribunals (Cnstitutin and Rules f Prcedure) (Amendment) Regulatins As explained in the questins belw, the new Acas cde f practice n disciplinary and grievance prcedures (New Acas cde) is als f crucial imprtance. See the questin belw n what emplyers must d t fllw the new Acas cde. Other pints t nte n the changes include the fllwing: Emplyers and emplyees shuld d all that they can t reslve disciplinary and grievance issues themselves and shuld cnsider using a third party (fr example a mediatr r an arbitratr) t help reslve the prblem, ending up in an emplyment tribunal as a very last resrt. The rule laid dwn in the case f Plkey v. A. E. Dauntn Services Ltd [1988] ICR 142, HL is being fully reinstated. This applies t cases where a dismissal may be technically unfair n prcedural grunds, but if the crrect prcedures had been fllwed then the dismissal wuld have taken place anyway. In such cases the tribunal can reduce r eliminate the cmpensatry award t reflect the fact that the dismissal wuld have gne ahead anyway. (Between Octber 2004 and 6 April 2009 dismissals were autmatically unfair if an emplyer has nt cmpleted the statutry prcedures and the emplyer's failure t cmply with ther prcedures wuld nt be taken int accunt if the emplyment tribunal was satisfied that fllwing them wuld have had n effect n the emplyer's decisin t dismiss).

Fr matters arising befre 6 April 2009 emplyers shuld have fllwed the statutry prcedures in their previus frm; after that date they shuld fllw the new Acas cde (and if apprpriate, their wn discipline and grievance prcedures). If emplyers are uncertain which rules apply t the prblem in the wrkplace see ur the questin belw n the transitinal arrangements. Numerus ther pieces f legislatin crss refer t discipline and grievance issues. Sme imprtant examples include the: Emplyment Rights Act 1996 as amended Emplyment Rights Dispute Reslutin Act 1998 Emplyment Relatins Act 1999 Emplyment Rights Act 2004. The Emplyment Act 2008 is nt applicable t Nrthern Ireland.The Department has published detailed guidance fr HR prfessinals n dealing with disputes at wrk and key infrmatin fr emplyers. The nibusinessinf.c.uk website als prvides a range f resurces n disciplinary, grievance and dismissal prcedures. G t DELNI website G t nibusinessinf.c.uk What regime shuld an emplyer fllw in a disciplinary r grievance situatin befre and after 6 April 2009? The regime an emplyer shuld fllw in a disciplinary r grievance situatin depends upn whether the issue cncerned arse befre, r after, 6 April 2009. Frm 1 Octber 2004, statutry prcedures were intrduced int the wrkplace t encurage the reslutin f dismissal, disciplinary and grievance disputes. These statutry prcedures were remved when the relevant prvisins f the Emplyment Act 2008 came int frce n 6 April 2009. Hwever, sme situatins may have arisen while the statutry prcedures were in frce. Accrdingly in the shrt term, emplyers shuld be familiar with bth the ld and new regimes. Eventually all matters will be dealt with under the new regime. The different regimes are dealt with under separate headings belw: On r befre 5 April 2009 Fr matters arising befre 6 April 2009 emplyers must cntinue t fllw the statutry prcedures in their previus frm. The statutry disciplinary prcedures applied when an emplyer cntemplated dismissing r taking 'relevant disciplinary actin'. The grievance prcedures applied when the emplyee raises cncerns, prblems r cmplaints with their emplyer. Fr examples f when the prcedures apply, see the questin belw n checking if emplyers' plicies cmplied with the statutry minimum in frce befre 6 April 2009. The prcedures were cmpulsry and had t be fllwed by all emplyers and emplyees befre 6 April 2009. They represented a minimum standard f practice which had t be fllwed r certain cnsequences ensue - see the questin belw n what happens if the statutry prcedures r the new Acas cde f practice n disciplinary and grievance prcedures have nt been fllwed. There were tw sets f prcedures: standard, and mdified fr use in special circumstances such as fr frmer emplyees. Hwever, it is clear that parties shuld have attempted t use the standard prcedures where pssible.

The time limits fr making a claim t an emplyment tribunal were extended t accmmdate the statutry prcedures - see ur Tribunal claims and cmprmise FAQ. G t the Tribunal claims, settlement and cmprmise FAQ On r after 6 April 2009 Frm 6 April 2009 the mandatry 'three-step' prcesses fr disciplinary, grievance and dismissal prcedures were repealed. This des nt mean that emplyers will stp fllwing the letter/meeting/appeal structure. Stages similar t these steps remain imprtant after the refrms. In many cases an emplyer s wn internal prcedure requires them t fllw a pattern which is very similar t the three statutry steps. In additin the reasnable behaviur required by Acas emphasises the imprtance f written ntificatin f disciplinary matters and grievances, meetings and appeals. What the changes meant, is that the Acas cde f practice n disciplinary and grievance prcedures becmes even mre imprtant. Emplyers and emplyees must fllw the new Acas cde t ensure a reasnable standard f behaviur. An emplyment tribunal will cnsider the prcedure that has been fllwed by the emplyer r emplyee in dealing with the disciplinary matter r grievance. If the new Acas cde has nt been fllwed the tribunal has a discretin t adjust awards up r dwn between 0 and 25% in relatin t either party. Fr mre infrmatin see the questin belw n what emplyers must d t fllw the new Acas cde. The Gvernment website, Business Link, has practical infrmatin n handling disciplinary and grievance issues n r after 6 April 2009. G t Business Link BERR, CIPD and Acas have als prduced a jint guide n the new regime. Read guide Fr a summary f the key changes, an at-a- glance cmparisn between the statutry prcedures and the new Acas cde and a number f actin pints fr HR practitiners see ur factsheet. View factsheet The Emplyment Act 2008 is nt applicable t Nrthern Ireland.The Department has published detailed guidance fr HR prfessinals n dealing with disputes at wrk and key infrmatin fr emplyers. The nibusinessinf.c.uk website als prvides a range f resurces n disciplinary, grievance and dismissal prcedures. G t DELNI website G t nibusinessinf.c.uk (Fr infrmatin n hw t decide which regime shuld be used in a disciplinary r grievance situatin and the transitinal arrangements see the relevant questin belw). What must an emplyer d t fllw the new Acas cde f practice n disciplinary and grievance prcedures? Emplyers shuld always have adhered t the reasnable behaviur enshrined in the Acas cde f practice n disciplinary and grievance prcedures. Hwever, this becmes even mre crucial after 6 April 2009 when emplyment tribunals becme empwered t adjust awards t take int accunt nn-cmpliance with the new cde f practice. (New Acas cde). The fllwing pints are helpful, cncerning the key pints f the new Acas cde: The cde is a cncise ne which aims t fcus n the key principles behind the handling f disciplinary and grievance issues. The cde must be fllwed frm 6 April 2009.

In additin t the cde Acas has published detailed nn-statutry guidance n handling wrkplace disciplinary and grievance issues. The cde des nt apply t dismissals by reasn f redundancy. See Redundancy FAQ The cde des nt apply t the nn-renewal f fixed-term cntracts n their expiry. The cde has fur sectins - a frewrd, sme key principles, a sectin n discipline and a sectin n grievances. Disciplinary matters The new cde cntains essentially the same principles as the existing and previus cdes. Fr example in disciplinary matters the fllwing principles are invlved. Investigatin With disciplinary matters the emplyer shuld investigate and must: establish the facts f each case, investigate ptential disciplinary matters prmptly, make clear that a meeting that is merely investigatry may lead t disciplinary charges, allw emplyees t be accmpanied in certain cases (and infrm emplyees f the separate statutry right t be accmpanied in apprpriate cases). Fr mre infrmatin see the questin belw n cmpanins. keep any perid f suspensin with pay very brief, infrm the emplyee f the prblem with them, if it is decided that there is a disciplinary case t answer, the emplyee shuld be ntified in writing. Meeting If there is a case t answer the emplyer must hld a meeting with the emplyee t discuss the prblem and the emplyer shuld: ensure the ntificatin (including cpies f witness statements) cntains sufficient infrmatin t let the emplyee knw what the alleged prblem is and its pssible cnsequences, hld the meeting prmptly while allwing the emplyee reasnable time t prepare their case, allw the emplyee t set ut their case, call any witnesses and answer any allegatins, ensure that where pssible a different manager cnducts the meeting t the persn cnducting the investigatin, allw the emplyee t be accmpanied at the meeting by a trade unin fficial r clleague when requested (this remains a statutry right where the disciplinary meeting culd result in a frmal warning being issued r disciplinary actin being taken) - fr mre infrmatin see the questin belw n cmpanins, cnsider arranging fr smene wh is nt invlved in the facts f the matter t take a nte f the meeting and t act as an bserver cncerning the events f the meeting, cnsider arranging fr an interpreter where the emplyee has difficulty speaking English, keep a careful written recrd including the nature f the prblem, what was decided and actins taken, the reasn fr the actins, whether an appeal was ldged and any subsequent develpments. (Recrds are cnfidential and be kept in accrdance with the Data Prtectin Act 1998 which gives individuals the right t request and have access t certain persnal data), give cpies f meeting recrds t the emplyee, including cpies f any frmal minutes that may have been taken, cnsider whether any reasnable adjustments are necessary t accmmdate emplyees, witnesses cmpanins etc wh may be disabled.

Fr further infrmatin n witnesses and the right t be accmpanied see the separate questin belw n what infrmatin shuld an emplyer give t an emplyee befre a disciplinary r grievance meeting. It is als sensible t prvide fr what will happen in the event f failure t attend meetings - see ur questin belw n the failure f an emplyee t attend a meeting. After the meeting After the meeting the emplyer shuld then decide n apprpriate actin and infrm the emplyee accrdingly. The new Acas cde emphasises the fllwing pints which apply after the meeting: If the emplyee is fund guilty f miscnduct r pr perfrmance they shuld be given a written warning. A further act f miscnduct r failure t imprve within a set perid wuld nrmally result in a final written warning. If miscnduct r perfrmance is sufficiently serius, the emplyer may mve directly t a final written warning. Any warning shuld set ut the nature f the miscnduct r pr perfrmance and the change required (with a timescale). The emplyee shuld be tld f a specified perid after which the warning will be disregarded and that failure t imprve, within the set perid fllwing a final warning, may result in dismissal r sme ther penalty such as demtin. A fair disciplinary prcess, including a right f appeal, shuld always be fllwed even in cases where grss miscnduct has ccurred. Disciplinary rules shuld give examples f acts which the emplyer regards as acts f grss miscnduct. Appeal Emplyers must prvide emplyees with an pprtunity t appeal and: appeals shuld be heard prmptly, the appeal shuld be dealt with by a senir manager, wrkers have a statutry right t be accmpanied at appeal hearings, emplyees shuld be infrmed in writing f the results f the appeal hearing as sn as pssible and a written recrd shuld be kept as explained abve, large rganisatins may wish t allw a further appeal t an even higher level f management. Overlapping grievance and disciplinary cases Where an emplyee raises a grievance during the disciplinary prcedure the latter may be temprarily suspended in rder t deal with the grievance. The grievance prcedure wuld then be fllwed. If the grievance and disciplinary issues are related it may be apprpriate t deal with bth matters tgether. Similar prvisins are cntained within the new Acas cde t deal with grievances. Grievances Grievances are cncerns, prblems r cmplaints that emplyees raise with their emplyers. Issues that may cause grievances include prblems cncerning terms and cnditins f emplyment r wrking practices, health and safety, wrk relatins, bullying and harassment, r discriminatin. With grievance matters the fllwing principles are invlved. Initial stages

Befre dealing with a frmal grievance: Management shuld be trained in handling grievances and be familiar with the prvisins f the grievance prcedure. The emplyee shuld let the emplyer knw the nature f the grievance in writing. Emplyers shuld carry ut prmptly any necessary investigatins t establish the facts behind the grievance. In apprpriate minr cases emplyers shuld ffer t deal with matters infrmally if this is acceptable t the emplyee. Cnsider use f external mediatrs t help reslve grievances althugh this may be ffered nce the meeting has taken place. If a frmal meeting is t take place, allw emplyees t be accmpanied (and infrm emplyees f this as it is separate statutry right). Where the grievance is against the line manager the emplyee shuld be able t apprach anther manager r the persnnel department and wh t apprach shuld be utlined in the grievance prcedure. Cnsider arranging fr smene wh is nt invlved in the facts f the matter t take a nte f the meeting and t act as a bserver cncerning the events f the meeting. Cnsider arranging fr an interpreter where the emplyee has difficulty speaking English. Cnsider whether any reasnable adjustments are necessary t accmmdate emplyees, witnesses cmpanins etc wh may be disabled. Meeting Hld a meeting with the emplyee t discuss the grievance ideally within five wrking days. Allw the emplyee t be accmpanied at the meeting. Remember that during a grievance hearing it is the emplyee wh has raised the cmplaint and that the meeting is nt the same as a disciplinary hearing. A willingness t listen may lead t an amicable slutin. Allw the emplyee t explain the grievance and hw they feel it shuld be reslved. Cnsider hw t reslve the prblem and allw fr the emplyee t have sme pent up frustratin and anxiety. Tell the emplyee when they might reasnably expect a respnse if ne cannt be made at the meeting. Decide n apprpriate actin t reslve the grievance, and infrm the emplyee either in the meeting, r later withut unreasnable delay and in any event cnfirm that actin writing. If the emplyee s grievance is nt upheld the reasns fr that shuld be carefully explained. The emplyee shuld be infrmed that they can appeal if they are nt happy with the decisin r actin taken. Keep a careful written recrd including the nature f the grievance, what was decided and actins taken, the reasn fr the actins, whether an appeal was ldged, any subsequent develpments.(recrds are cnfidential and be kept in accrdance with the Data Prtectin Act 1998 which gives individuals the right t request and have access t certain persnal data.). Cpies f meeting recrds shuld be given t the emplyee including cpies f any frmal minutes that may have been taken. Appeal Emplyers must prvide emplyees with an pprtunity t appeal if they are unhappy with the decisin and: appeals shuld be heard prmptly, the appeal shuld be dealt with by a mre senir manager than at the previus meeting, wrkers have a statutry right t be accmpanied at appeal hearings, emplyees shuld be infrmed in writing f the results f the appeal hearing as sn as pssible and a written recrd shuld be kept as explained abve. Large rganisatins may wish t allw a further appeal t an even higher level f management.

The new cde, nn-statutry guidance and ther infrmatin are available n the Acas website. G t Acas website What happens if the statutry disciplinary and grievance prcedures r the new Acas cde f practice n disciplinary and grievance prcedures are nt fllwed? The statutry dispute reslutin prcedures were repealed n 6 April 2009, under the Emplyment Act 2008. (The Act des nt apply t Nrthern Ireland). Hwever fr issues arising n r befre 5 April 2009 the ld statutry prcedures still apply. Accrdingly emplyers need t be familiar with cnsequences f failure t fllw the ld and new regimes. These cnsequences are dealt with under separate headings belw: On r befre 5 April 2009 If an emplyer dismissed an emplyee withut cmpleting the statutry prcedure, and if the failure was whlly r mainly attributable t the emplyer then: Any dismissal was autmatically unfair (subject t the usual qualifying cnditins, fr example the 12 mnth qualifying perid). The dismissed emplyee will receive at least fur weeks' pay in cmpensatin. Cmpensatin fr the emplyee may be increased by between 10 per cent and 50 per cent. (In exceptinal circumstances cmpensatin may be adjusted by less than 10 percent). See als the questin n the effect f an emplyer's failure t fllw the statutry prcedures n cmpensatin payable in a discriminatin claim in ur Discriminatin FAQ. G t Discriminatin FAQ If an emplyee des nt meet the requirements set ut in the statutry prcedures then: Any award made t them can be reduced by at least 10 per cent and may be reduced by up t 50 per cent. In cases where the grievance prcedure applies, the tribunal will refuse t accept any claim the emplyee attempts t present until they have initiated the grievance prcedure. On r after 6 April 2009 Frm this time nwards, emplyment tribunals will cnsider if the emplyer has fllwed the new Acas cde f practice n disciplinary and grievance prcedures (New Acas Cde) and if they have nt, then the tribunal may adjust any awards made by up t 25 per cent fr unreasnable failure t cmply with any prvisin f the cde. A tribunal will cnsider why the emplyer r emplyee failed t fllw the new Acas cde and the extent t which this failure was unreasnable. Relevant factrs include the size f the emplyer s rganisatin. If the tribunal finds the emplyer culpable then the award may be increased by between 0 and 25 per cent. If the tribunal finds the emplyee t be at fault then the award may be decreased by between 0 and 25 per cent. The new Acas cde is supprted by guidance which des nt frm part f the revised cde, but has been prepared by Acas t help emplyers and emplyees understand the new Acas cde and hw t reflect it in their prcedures and behaviur. See the questin abve n what emplyers must d t fllw the new Acas cde n discipline and grievance prcedures. (Fr infrmatin n hw t decide which regime shuld be used in a disciplinary r grievance situatin and the transitinal arrangements see the relevant questin abve).

Hw des an emplyer decide whether t use the ld dispute reslutin prcedures, r the new regime, in a disciplinary r grievance situatin and what are the transitinal arrangements? With effect frm 6 April 2009, the statutry dispute reslutin prcedures were repealed under the Emplyment Act 2008. (The Act des nt apply t Nrthern Ireland). After this time emplyment tribunals will cnsider if the emplyer has fllwed the revised Acas cde f practice n disciplinary and grievance prcedures. Fr further details f the cntent f these prcedures g t the questin abve n what regime shuld an emplyer fllw in a disciplinary r grievance situatin. The changes made in April 2009 were substantial, and in sme cases will present emplyers with difficulties in deciding whether the ld r new regime applies. Difficulties may arise especially with wrkplace issues which emerge at arund the same time as the changes cme int effect. Our guidance set ut belw can be used t help emplyers decide if the ld r the new regime applies. (Of curse, emplyers shuld take the usual steps t try and prevent all disputes escalating in the first place): Once an unavidable dispute has arisen the emplyer shuld identify a trigger event t ascertain whether the ld r new (pst 6 April) regime applies. In mst disciplinary r dismissal cases the trigger date will be the date when the emplyer sent the letter inviting the emplyee t a meeting t address the prblem. (If n such prcedure has been fllwed, then the trigger date may be an actual dismissal date, r a date when disciplinary actin was taken). In mst grievance cases the trigger event will be the date f the actin which the emplyee has a grievance abut. Once the crucial trigger date has been identified then: Where the trigger event takes place n r befre 5 April 2009 the ld three step statutry dispute reslutin prcedures will apply. Where the trigger event takes place n r after 6 April 2009 the new regime will apply. Prblem areas There will inevitably be numerus emplyment tribunal cases which entail a difference f pinin between the emplyer and ex-emplyee as t which rules apply. Sme emplyers wh have failed t fllw the ld regime will inevitably argue that the trigger event arse n r after 6 April 2009. The fllwing pints may be f help in prblem areas: Under the ld regime a three mnth extensin t the time fr presenting a claim applied in many cases. This will cntinue be the case t thse cases where the trigger event takes place n r befre 5 April 2009. Sme claims t which the ld regime applies will still be being pursued int 2010 (because f hw lng it can take fr cases t reach a hearing and because the extensin rules apply as explained abve). This means that sme emplyers may be dealing with ne situatin t which the ld rules apply and anther situatin which is subject t the new regime. Emplyers and emplyees cannt elect which arrangements apply. In cases which fall arund the transitinal time it may be prudent fr the emplyer t state t the emplyee which regime they think applies and why. Althugh in many cases emplyers will be fllwing their wn cmpany prcedure which will hpefully cmply with bth the ld statutry prcedures and the revised Acas cde. If in dubt, emplyers shuld attempt t fllw their wn prcedures, the ld statutry three step prcedure and the recmmendatins f the revised Acas cde. This is nt as arduus as it may seem as the revised Acas cde merely encmpasses what is reasnable behaviur anyway.

Cntinuing acts Where the emplyee cmplains abut smething which started n r befre 5 April 2009, but carries n after 6 April 2009, the situatin is that the ld regime will apply initially; prvided that: the emplyee submits a written grievance r emplyment tribunal claim n r befre: 4 July 2009 fr claims with a three mnth time limit (fr example an unfair dismissal r discriminatin claim) r 4 Octber 2009 fr claims with a six mnth time limit (fr example an equal pay claim). Examples f cases t which the ld regime applies An emplyee is sent a step 1 letter n 2 March 2009 inviting her t a meeting t discuss a very serius prblem with her wrk. All stages f the statutry prcedure are fllwed and she is eventually dismissed in late April 2009. She makes an unfair dismissal claim in June 2009. When the emplyment tribunal hears the case the ld regime will apply as the trigger event (the step 1 letter) tk place befre 5 April 2009. An emplyer embarks upn a cntinuing curse f actin against an emplyee, including taking sme f her better quality wrk away frm her. This starts in March 2009 and cntinues after 6 April 2009. The emplyee submits a written grievance abut this in May 2009. The ld regime applies as the act cmmenced befre 5 April and the emplyer s cnduct cntinued, and the emplyee raised her grievance befre the 4 July 2009 cut ff pint. Examples f cases t which the new regime applies. An emplyer sends a letter t an emplyee n 6 April 2009 inviting him t a meeting t discuss a very serius prblem with his wrk. The emplyee is eventually is eventually dismissed in late April 2009 and makes an unfair dismissal claim in June 2009. When the rmplyment tribunal hears the case, the new regime will apply as the trigger event (the letter) tk place n r after 6 April 2009. An emplyer embarks upn a cntinuing curse f actin against an emplyee, including taking sme f his better quality wrk away frm him. This starts in March 2009 and cntinues after 6 April 2009.The emplyee eventually submits a written grievance abut this n 5 July 2009. The new regime applies as the written grievance was submitted after the 4 July 2009 cut ff pint. Further guidance n the transitinal arrangements and examples can be fund n the BERR website. View guidance and examples Hw des an emplyer check if their disciplinary and dismissal plicy and prcedure cmplied with the statutry minimum befre 6 April 2009? Befre the refrms which cme int frce frm 6 April 2009 under the Emplyment Act 2008, disciplinary plicies had t cmply with the statutry minimum. (The Act des nt apply t Nrthern Ireland). Mst disciplinary plicies cmplied with the statutry minimum as it cntained very basic standard elements. The table belw cntains the key elements f the standard disciplinary and dismissal prcedure which must be fllwed in cases f, fr example: dismissal n grunds f capability dismissal n grunds f cnduct dismissal by reasn f redundancy nt renewing a fixed term cntract

disciplinary suspensin, where the emplyee is suspended withut pay r n reduced pay. Step One: Letter Step Tw: Meeting Step Three: Appeal The emplyer set dwn in writing the nature f the emplyee's cnduct, capability r ther circumstances that may result in dismissal r disciplinary actin, and sends a cpy f this statement t the emplyee. The emplyer had t infrm the emplyee f the basis fr their cmplaint. The emplyer invited the emplyee t a hearing at a reasnable time and place where the issue can be discussed. The emplyee and emplyer had t take all reasnable steps t attend. The emplyee had a right t be accmpanied in the meeting by a trade unin representative r clleague f their chice. After the meeting, the emplyer had t infrm the emplyee abut any decisin, and ffer the emplyee the right f appeal. If the emplyee wished t appeal, they must infrm the emplyer. The emplyer had t invite the emplyee t attend a further meeting t appeal against the emplyer's decisin. The emplyee had a right t be accmpanied in the meeting by a trade unin representative r clleague f their chice. The final decisin must be cmmunicated t the emplyee. Where pssible, a mre senir manager shuld attend the appeal hearing. Stages similar t the abve still remain imprtant after the refrms which came int frce n 6 April 2009. Althugh the statutry prcedures are ablished after that date, reasnable behaviur remains crucial. The new Acas cde f practice n disciplinary and grievance prcedures emphasises the imprtance f written ntificatin f the prblem with the emplyee, meetings and appeals. Fr infrmatin n hw t check if a disciplinary r grievance prcedure cmplies with the revised Acas cde see the relevant questin abve. (Fr infrmatin n hw t decide which regime shuld be used in a disciplinary r grievance situatin and the transitinal arrangements see the relevant questin abve). Hw des an emplyer check if their grievance plicy and prcedure cmplied with the statutry minimum in frce befre 6 April 2009? Until the refrms which came int frce frm 6 April 2009 under the Emplyment Act 2008, grievance plicies had t cmply with the statutry minimum. Mst existing grievance plicies will cmply with the statutry minimum as it cntains very basic standard elements. The table belw cntains the key elements f the standard grievance prcedure which must be fllwed in cases where an emplyee is cncerned abut any actin their emplyer has taken, r is cntemplating taking, twards them, including fr example: a change in the terms and cnditins f emplyment the intrductin f new wrking practices rganisatinal changes eg a new manager health and safety issues relatinships at wrk - including persnality clashes discriminatin bullying harassment equal pprtunities

rganisatinal change being suspended even if n full pay. Step One: Letter Step Tw: Meeting Step Three: Appeal The emplyee set ut the grievance in writing and sent a cpy f this statement t the emplyer. The emplyee had t infrm the emplyer what the basis fr the grievance was and the emplyer had t have reasnable pprtunity t cnsider it. The emplyer invited the emplyee t attend a meeting t discuss the grievance at a reasnable time and place. Bth parties must take reasnable steps t attend. The emplyee had a right t be accmpanied in the meeting by a trade unin representative r clleague f their chice. If the emplyee wished t appeal, they must infrm the emplyer. The emplyer must invite the emplyee t attend a further meeting t appeal against the emplyer's decisin. The emplyee had a right t be accmpanied in the meeting by a trade unin representative r clleague f their chice. The final decisin must be cmmunicated t the emplyee. Where pssible, a mre senir manager shuld attend the appeal hearing. Stages similar t the abve remain imprtant after the refrms cme int frce n 6 April 2009. Althugh the statutry prcedures were ablished after that date reasnable behaviur remains crucial. The Acas cde f practice n disciplinary and grievance prcedures emphasises the imprtance f written ntificatin f grievances, meetings and appeals. Fr details f what an emplyer must d t fllw the Acas revised cde see the relevant questin abve. (Fr infrmatin n which regime shuld be used in a disciplinary r grievance situatin befre and after 6 April 2009 and the transitinal arrangements see the relevant questin abve). What shuld a dismissal, disciplinary and grievance plicy and prcedure cntain? Befre 6 April 2009 a dismissal, disciplinary and grievance plicy and prcedure shuld cntain at least the three statutry steps and ideally, reasnable elements ver and abve that statutry minimum. Frm 6 April 2009, under the Emplyment Act 2008, the statutry minimum prcedure was remved and replaced with nn-prescriptive Acas guidelines which reflect reasnable behaviur. (The Act des nt apply t Nrthern Ireland). Emplyers shuld therefre ensure that dismissal, disciplinary and grievance plicies and prcedures reflect the new Acas cde f practice n disciplinary and grievance prcedures. Mst rganisatins will have existing plicies which d cmply with the new Acas cde. Hwever, emplyers shuld review disciplinary and grievance prcedures t check they d nt cntradict its prvisins. A pint fr particular cnsideratin is t ensure that internal prcesses encmpass a mediatin stage. As always, managers shuld be trained in hw t deal with prblems at an early stage t stp them escalating. Elements including the fllwing shuld be cnsidered: Prvisin fr dealing with minr matters infrmally.

Encuraging the use f mediatin t reslve disputes where apprpriate. The need fr the prmpt handling f issues. Need fr clarity and unambiguusness. Clarificatin f wh is cvered fr example emplyees, agency wrkers, temps etc. Cnfirmatin f actin that can be taken and by whm. Dismissal shuld be by senir management nly. Clearly identify matters that amunt t grss miscnduct. Ensure n dismissal fr first breach f discipline, unless matter f grss miscnduct. Cnfirm the decisin, reasning and right f appeal in writing. The need t ensure plicies and prcedures are cmmunicated t all emplyees is imprtant especially if English is nt their first language. The new Acas cde is t be used as a benchmark by emplyment tribunals when cnsidering the fairness r therwise f an emplyer's prcedure and actins. Fr further infrmatin n emplyers shuld d t fllw the new Acas cde see the relevant questin abve. What was the mdified statutry minimum dismissal and disciplinary prcedure in frce befre 6 April 2009? The table belw cntains the key elements f the mdified (special circumstances) statutry minimum dismissal and disciplinary prcedure which applied t claims where the trigger event tk place n r befre 5 April 2009. Fr mre infrmatin see the questin n what regime t use in a disciplinary r grievance situatin and the transitinal arrangements. It was unusual fr the mdifed prcedure t apply, but it had t be fllwed in mst cases where the standard prcedure was nt applicable. (Fr mre infrmatin n when this prcedure can be used, see the questin belw n whether an emplyer culd chse t fllw the mdified prcedure after dismissal in cases f grss miscnduct.) Step One: Letter The emplyer had t write dwn and send t the emplyee: the nature f the alleged miscnduct that has led t the dismissal. the evidence fr this decisin, and the right t appeal against the decisin.. Step Tw: Appeal If the emplyee wished t appeal, they must infrm the emplyer. The emplyer must invite the emplyee t attend a hearing t appeal against the emplyer's decisin, and the final decisin must be cmmunicated t the emplyee. The emplyee had a right t be accmpanied in the meeting by a trade unin representative r clleague f their chice. The mdified prcedure was remved in its entirety when refrms under the Emplyment Act 2008 were implemented. Befre 6 April 2009, emplyers had t fllw the prcedures in their previus frm.

Can an emplyer simply dismiss an emplyee in cases f grss miscnduct? It is a cmmn miscnceptin that an emplyer can simply dismiss an emplyee in cases f grss miscnduct. If an emplyer des this, there is likely t be a claim fr unfair dismissal. It is almst always unfair t dismiss an emplyee instantly, withut first ging thrugh sme frm f prcedure even in a case f apparently bvius grss miscnduct. The rules gverning disciplinary and grievance hearings changed with effect frm 6 April 2009 under the Emplyment Act 2008. (The Act des nt apply t Nrthern Ireland). Hwever, the psitin cncerning grss miscnduct is similar under the new and ld regimes. Emplyers d need t be familiar with bth regimes as the cnsequences f failure t fllw the prcedures are different. Fr the cnsequences f failure t fllw the regimes see the questin abve n what happens if the statutry disciplinary and grievance prcedures r the Acas cde n disciplinary and grievance prcedures are nt fllwed. On r befre 5 April 2009 Until 6 April 2009, emplyers had t fllw the standard disciplinary prcedure, even in cases f grss miscnduct. It was nt acceptable t just chse t fllw the mdified prcedure. Fr details f the standard prcedure see the abve questin n hw des an emplyer check if their disciplinary and dismissal plicy and prcedure cmplies with the statutry minimum in frce befre 6 April 2009? Hwever, befre 6 April 2009 the mdified prcedure was apprpriate fr a small minrity f grss miscnduct dismissals where: The emplyer has dismissed the emplyee withut ntice n the basis f his r her grss miscnduct and the dismissal tk place at the time the emplyer became aware f the grss miscnduct (r immediately after) and the emplyer was entitled t dismiss fr grss miscnduct withut ntice r payment in lieu f ntice and it was reasnable fr the emplyer t dismiss withut investigating the circumstances. On r after 6 April 2009 A fair disciplinary prcess must still be fllwed even in cases where grss miscnduct has ccurred; as emphasised in the new Acas cde f practice n disciplinary and grievance prcedures (New Acas cde). The new Acas cde emphasis that: Disciplinary prcedures shuld give an indicatin f the type f miscnduct which fall int the categry f 'grss miscnduct'. It is still imprtant t fllw a fair prcedure as fr any ther disciplinary ffence. The facts f the case must be established befre taking any actin, hlding a meeting with the emplyee and allwing the emplyee the right f appeal. It shuld be made clear that dismissal is a pssibility. A shrt perid f suspensin with full pay may be permissible t help establish the facts r t allw tempers t cl. Any perid f suspensin shuld be kept under review. Examples f grss miscnduct might include: theft r fraud, physical vilence r bullying,

deliberate and serius damage t prperty, serius misuse f an rganisatin s prperty r name, deliberately accessing internet sites cntaining prngraphic, ffensive r bscene material, serius insubrdinatin, discriminatin r harassment, bringing the rganisatin int serius disrepute, serius incapability at wrk brught n by alchl r illegal drugs, causing lss, damage r injury thrugh serius negligence, a serius breach f health and safety rules and, a serius breach f cnfidence. After the disciplinary prcess has been cmpleted An emplyer shuld nt dismiss emplyees wh have cmmitted grss miscnduct, whatever the circumstances. The fllwing factrs shuld be brne in mind befre deciding t dismiss: Hw was the rule which has been brken cmmunicated t emplyees? Was this the first ffence and hw significant is the rule that has been breached? Has there been a reasnable investigatin? Did the cmpany fllw a fair prcedure? Was the emplyee given sufficient details f the allegatins against them? Was the emplyee given adequate pprtunity t respnd t allegatins made against them? Were there any mitigating circumstances t be cnsidered such as prvcatin r length f service? Have emplyees been treated cnsistently? A gd example f an unfair dismissal despite clear grss miscnduct and a clear disciplinary rule regarding grss miscnduct can be seen in Laws Stres Ltd v Oliphant [1978] IRLR 251, EAT. The emplyee was a till peratr wh was dismissed fr grss miscnduct when she failed t register a sale. The dismissal was in accrdance with an agreed disciplinary prcedure that stated till irregularities were always grss miscnduct. The Emplyment Appeal Tribunal upheld an emplyment tribunal finding that the dismissal was unfair in the circumstances f the case, given the severity f the penalty fr a ne-ff unexplained incident where it had been accepted that n dishnesty was invlved. (Fr infrmatin n hw t decide which regime shuld be used in a disciplinary r grievance situatin and the transitinal arrangements see the relevant questin abve). What was the mdified statutry minimum grievance prcedure in frce befre 6 April 2009 and when can an emplyer agree t use it? The table belw cntains the key elements f the mdified (special circumstances) statutry minimum grievance prcedure which applied t claims where the 'trigger event' tk place n r befre 5 April 2009. Fr further infrmatin cncerning the trigger event see the questin abve n which regime t use in a disciplinary r grievance situatin and the transitinal arrangements. This prcedure culd be fllwed in cases where the standard grievance prcedure wuld therwise apply but where the emplyment has ended and certain criteria are satisfied. Step One: Letter The emplyee had t set ut in writing and send t the emplyer: the nature f the grievance and

the basis fr it. Step Tw: Appeal The emplyer had t set ut their respnse in writing and send a cpy f it t the emplyee. The mdified (tw-step) grievance prcedure applied in circumstances where it wuld be irratinal t blige the parties t fllw the standard prcedure, including attending meetings, where there was n cntinuing emplyment relatinship and the parties have n interest in fllwing the prcedures. It applies where the emplyment had ended and: either the emplyer was nt aware f the grievance befre the emplyment ended, r if the emplyer was s aware, the standard grievance prcedure had nt started r had nt been cmpleted by the time the emplyment ended, and the parties agreed in writing that the mdified, rather than the standard, grievance prcedure applied. The mdified prcedure was remved in its entirety when the Emplyment Act 2008 was implemented. Befre 6 April 2009, emplyers had t t fllw the prcedures in their previus frm. What is an emplyer's psitin if an emplyee subsequently attempts t raise an issue in the emplyment tribunal which they did nt refer t in their grievance? The statutry prcedures cncerning grievances were remved when the prvisins f the Emplyment Act 2008 cme int frce n 6 April 2009. (The Act des nt apply t Nrthern Ireland). Hwever fr issues which arse n r befre 5 April 2009 the statutry prcedures still apply. Accrdingly, emplyers need t be familiar with cnsequences f failure t fllw the ld and new regimes.these are dealt with under separate headings belw. On r befre 5 April 2009 There were quite a few cases cncerning the emplyer s psitin where an emplyee subsequently attempts t raise an issue at an emplyment tribunal which they did nt refer t in their grievance. The starting pint is that the emplyer can argue that the tribunal shuld refuse t hear any claim if the claimant has nt initiated the statutry grievance prcedure first. Emplyers shuld, therefre, scrutinise an emplyee s ET1 claim frm t ascertain the nature f their cmplaints and cmpare it t the grievance. If there is a crucial element missing, fr example a discriminatin claim which was nt mentined in the grievance prcedure, then the emplyer may be successful in claiming that the tribunal shuld nt hear that aspect f the cmplaint. Althugh tribunals will nt easily deny emplyees a hearing, they have dne s in sme cases. Fr example, in the case f Nskiw v Ryal Mail Grup plc (unreprted, ET 2602639/04, 7 March 2005), Mr Nskiw's claim fr disability discriminatin was rejected n the basis that he had nt prperly raised a grievance. He had sent an e-mail t his emplyer cmplaining abut aspects f his treatment in particular a pay review, but he had crucially mitted any reference t disability discriminatin in his grievance. The emplyer was therefre successful in preventing him frm pursuing that aspect f the claim. Hwever, it is imprtant t nte that althugh emplyees may be prevented frm pursuing a tribunal claim if they have nt raised their cmplaint in a Step One letter, relatively little is required frm an emplyee t initiate the grievance prcedure - see the questin belw n which cmmunicatins an emplyer shuld treat as a grievance. On r after 6 April 2009

The statutry prcedure was remved in its entirety when the Emplyment Act 2008 was implemented. If an emplyee has nt raised a written grievance that will nt prevent the emplyee frm presenting a tribunal claim Hwever, it will still be imprtant fr emplyees t raise prper grievances with their emplyer befre presenting a tribunal claim as the revised Acas cde f practice n disciplinary and grievance prcedures specifies that they shuld d s. Emplyees wh d nt fllw the cde may see their cmpensatin being reduced by up t 25% in apprpriate cases. (Fr infrmatin n hw t decide which regime shuld be used in a disciplinary r grievance situatin and the transitinal arrangements see the relevant questin abve). Which cmmunicatins shuld an emplyer treat as a grievance? Any cmmunicatin which cntains a prblem r cmplaint that the emplyees raises with their emplyer shuld ptentially be treated as a grievance. If an emplyer is in dubt abut whether the emplyee is raising a frmal grievance, that issue culd always be clarified with the emplyee by asking them directly. Befre 6 April 2009, emplyers were required t fllw the statutry grievance prcedure. There are numerus cases cncerning thse prcedures which prvide sme guidance as t what cnstitues a grievance. Althugh these cases are primarily f histrical interest, nce the statutry prcedures are remved in their entirety under the Emplyment Act 2008, they prvide sme guidance as t the wide range f cmmunicatins which cnstitute grievances. (The Act des nt apply t Nrthern Ireland). It is best practice fr emplyers t handle minr matters infrmally if pssible, but t be prepared t treat any prblem with due cncern as a ptential grievance. The key pints which emplyers shuld nte cncerning grievances arising frm previus caselaw are: Grievances can be cntained in a wide variety f written cmmunicatins, fr example, a letter making a general man r grumble, emails, resignatin letters, in a letter frm the emplyee s slicitr (even if a letter threatening prceedings) and a flexible wrking request If a grievance des nt mentin the legal basis f the claim at all, the emplyer may have a chance f having a subsequent claim barred, at least temprarily. Emplyees d nt need nt set ut a detailed statement f grievance in detail but there must be sufficient fr the emplyer t appreciate that a relevant grievance has being raised. Emplyers shuld scrutinise an emplyee s ET1 claim frm t determine the nature f the cmplaint and cmpare it t the grievance. The fllwing are examples f the numerus cases under the statutry prcedures which clarify whether the emplyee has intiated the grievance prcedure: Canary Wharf Management Limited v Edebi [2006] ICR 719, EAT. A security fficer wrte in 2004 t his emplyer cmplaining that he was expsed t traffic fumes and had therefre suffered asthma. In that letter he referred t the Disability Discriminatin Act 1995 seeking reasnable adjustments t his jb. He wrte again in 2005 with a number f ther cmplaints abut cnditins, facilities and pay but he did nt specifically mentin the asthma again. He later claimed disability discriminatin, cnstructive dismissal and unlawful deductin f wages. By making reference t his health issues amng the ther list f cmplaints, the 2005 letter was nt enugh t raise a disability discriminatin cmplaint. The case demnstrated that althugh the emplyee need nt set ut a technically detailed statement f grievance fr it t cnstitute a Step One letter, there must be a sufficiently clear cmplaint fr the emplyer t spt that a relevant grievance is being raised. Cmmtin Ltd v Rutty [2006] IRLR 171, EAT. In this case, it was held that a written request fr flexible wrking under the Emplyment Rights Act 1996 sectin 80F can cunt as a Step One grievance letter even thugh there was n specific reference t a grievance.. Martin v Class Security Installatins Limited (unreprted EAT/0188/06/DM). The Emplyment Appeal Tribunal (EAT) fund that a resignatin letter and a slicitr s letter were bth sufficient t

cnstitute a Step One letter even althugh the slicitr's letter implied that a grievance wuld fllw in due curse. Shergld v Fieldway Medical Centre [2006] IRLR 76. It was held that a resignatin letter was sufficient t initiate the statutry grievance prcess as lng as the 'grievance' is set ut in writing. The tribunal cmmented that it is nt necessary t state that a letter is a grievance, r is an invcatin f a grievance prcedure. It was als stated that the grievance need nt be identical t subsequent prceedings, but there must be material similarity if the statutry prcedures are t be cmplied with. Kennedy Sctt Ltd v Francis (unreprted, UK/EAT/0204/07 3 May 2007, EAT) In this case the emplyer argued that the emplyee had failed t cmply with Step One f the statutry requirement as the emplyee had truble writing and the emplyer had made the written nte f his grievance fr him. The emplyer tried t argue that the statutry requirements had nt been met and therefre the emplyment tribunal had n pwer t hear the race and sex discriminatin claims. The EAT agreed with the emplyee s that it appears that Step One will be cmplied with even if the emplyer has summarised the grievance in writing fr the emplyee. (Fr infrmatin n n hw t decide which regime shuld be used in a disciplinary r grievance situatin and the transitinal arrangements see the relevant questins abve). What is the emplyer's psitin if an emplyee fails t attend the meeting fixed by an emplyer t cnsider a disciplinary r grievance issue? The statutry prcedures cncerning grievances were remved when the prvisins f the Emplyment Act 2008 came int frce n 6 April 2009. (The Act des nt apply t Nrthern Ireland). The tribunals will nw cnsider if the emplyer has fllwed the new Acas cde f practice n disciplinary and grievance prcedures (new Acas cde). Hwever, fr issues arising n r befre 5 April 2009 the statutry prcedures d still apply. Accrdingly emplyers need t be familiar with cnsequences f failure t attend meetings under the ld and new regimes.these are dealt with under separate headings belw. On r befre 5 April 2009 Under the statutry minimum disciplinary r grievance prcedures, if the emplyer, the emplyee r the emplyee's cmpanin cannt reasnably attend a meeting, the meeting had t be rearranged if the reasn was unfreseeable fr example illness. The emplyer was bliged t rearrange the meeting at least nce. If the meeting falls thrugh a secnd time fr unfreseeable reasns, neither party is under any further bligatin under the statutry prcedures. Bth parties were treated as having cmplied with the relevant statutry prcedures s, if applicable, the nrmal time limit fr making a tribunal applicatin may be extended. Hwever, if a party did nt attend the meeting and the failure culd be reasnably freseen, then the parties will nt be under any further bligatin under the statutry prcedures. The tribunal may chse t attribute respnsibility fr that failure by using the 10-50% margin fr adjusting unfair dismissal awards. On r after 6 April 2009 The guidance accmpanying the revised Acas cde recgnises that there may be ccasins when an emplyee is unable r unwilling t attend a meeting. This may be fr genuine illness r perhaps because the emplyee wishes t avid the meeting due t anxiety cncerning the issues t be discussed. The whle tenr f the Acas cde cncerns reasnable behaviur. Therefre emplyers need t cnsider all the facts, the reasn fr the absence and decide hw t prceed. It is helpful if rganisatin has its wn disciplinary and grievance plicy which addresses failure t attend meetings. Where there has been a failure t attend a meeting Acas recmmend taking int accunt the fllwing:

the seriusness f the disciplinary issue under cnsideratin, the emplyee s disciplinary recrd (including current warnings), general wrk recrd, wrk experience, psitin and length f service (althugh sensible emplyers will nt treat emplyees differently n grunds f length f service t avid age discriminatin claims), medical pinin n fitness t attend the meeting, treatment f similar cases in the past. After repeated failures t attend meetings the emplyer shuld infrm the emplyee that there is n alternative, but t make a decisin in the emplyee s absence n the evidence available. Obviusly an emplyer shuld keep a careful recrd f the emplyee s failure t attend the meetings and the attempts t recnvene thse meetings. It is imprtant fr emplyees t attend meetings with their emplyer as the new Acas cde specifies that they shuld d s. Frm 6 April 2009 emplyees wh d nt fllw the cde may see their cmpensatin being reduced by up t 25% in apprpriate cases. (Fr infrmatin n which regime shuld be used in a disciplinary r grievance situatin befre and after 6 April 2009 and the transitinal arrangements see the relevant questin abve). What infrmatin shuld an emplyer give t an emplyee befre the disciplinary r grievance meeting? The rules gverning the infrmatin that an emplyer give t an emplyee befre the disciplinary r grievance hearing changed under the Emplyment Act 2008, with effect frm 6 April 2009. (The Act des nt apply t Nrthern Ireland). Hwever the infrmatin which needs t be prvided t an emplyee befre the meeting is essentially the same under the new and ld regimes. Hwever emplyers d need t be familiar with bth regimes as the cnsequences f failing t fllw the prcedures are different. Fr the cnsequences f failure t fllw the regimes see the questins abve n what happens if the statutry disciplinary and grievance prcedures r the new Acas cde f practice n disciplinary and grievance prcedures (new Acas cde) are nt fllwed and transitinal perid between the tw regimes. The nature f the infrmatin t be supplied is prvided in mre detail belw: Infrmatin Emplyers shuld always include a fairly detailed descriptin f the allegatins in the letter inviting the emplyee t a disciplinary meeting (r in grievance cases, details f their respnse t the emplyee). Emplyers shuld enclse with that letter as much supprting detail as pssible, fr example statements f any witnesses (which may be dealt with annymusly in apprpriate cases - see als the questins belw n witnesses and witness statements and bullying and harassment and annymus witness evidence) Other infrmatin which the emplyer shuld cnsider disclsing t the emplyee may include emails and letters. The evidence an emplyer will ften ultimately rely upn is the verbal accunt given by ther emplyees, summarised in the frm f a witness statement. The law relating t 'evidence' is cmplex and the nature f evidence is ften misunderstd by emplyees. Evidence can include, fr example: evidence in dcumentary frm, verbal explanatins given by witnesses in a tribunal r curt, ther evidence such as infrmatin n the hard drive f a cmputer, phtgraphs, CCTV ftage r a sund recrding.

It is nt necessary t enclse all the infrmatin r evidence the emplyer has. Hwever t ensure that any resulting dismissal is perceived t be fair, it is crucial t disclse t the emplyee as much material as pssible in advance f the hearing. This shuld include cpies f any dcuments, witness statements r ther evidence the emplyer intends t rely upn. See als the questin belw fr further infrmatin cncerning witness statements. The new Acas cde cnfirms that the ntificatin t the emplyee befre any meeting shuld cntain sufficient infrmatin abut the alleged miscnduct r pr perfrmance and the cnsequences t enable the emplyee t prepare t answer the case at a disciplinary meeting. It wuld nrmally be apprpriate t prvide cpies f any written evidence, which may include any witness statements, with the ntificatin.the ntificatin shuld als give details f the time and venue fr the disciplinary meeting and advise the emplyee f their right t be accmpanied at the meeting. Sme case law guidance cncerning supply f infrmatin under the statutry prcedures will remain relevant after 6 April 2009. Fr example: A cmmn sense apprach shuld always be taken. It is therefre acceptable fr additinal infrmatin explaining the basis f the allegatin t fllw in verbal r written frm after the initial letter, but befre the disciplinary meeting, althugh this is nt ideal. (See YMCA Training v Stewart [2007] IRLR 185, EAT). The emplyer shuld supply enugh infrmatin s that the emplyee knws what the allegatins against him are. Fr example in Draper v Mears Ltd [2006] IRLR 869, EAT an emplyee was dismissed fr breaching the emplyer s n drinking alchl plicy, because he had cnsumed alchl befre using a cmpany van fr persnal use. The letter which was sent t the emplyee ambiguusly referred t cnduct which failed t ensure the health and safety f neself and thers, this was insufficient. What is the rle f witnesses and witness statements at a disciplinary r grievance meeting? There are three distinct categries f persns wh may be present at the disciplinary r grievance meeting and emplyees may be cnfused as t their rles: There will ften be a witness wh has sme infrmatin abut the issue under discussin. Fr example, an emplyee wh witnessed a fight between ther emplyees, r wh saw anther emplyee being bullied. The witnesses may have infrmatin which supprts the emplyer s versin f events r the emplyee s versin. There may be anther emplyee fr example frm the persnnel department wh has been invited by the emplyer t take a careful nte f the matters discussed, wh shuld nt be a witness t any f the events giving rise t the hearing. There may als be a cmpanin invited by the emplyee see the questin belw n the rle f the cmpanin. Obviusly the rle f witnesses shuld nt be cnfused with that f the cmpanin r the impartial nte taker. The cmpanin is there t supprt the emplyee, whereas witnesses have seen r heard smething relevant t the dispute. The three rles abve are all quite distinct and this questin primarily cncerns the rle f witnesses wh have sme infrmatin abut the facts leading t the incident under discussin. The witness statements mentined in the questin abve are merely a written accunt f what that these witness f fact say actually happened. As well as being prvided with cpies f witness statements prir t the meeting with the emplyee, there shuld be an pprtunity fr bth the emplyer and the emplyee during the meeting t call witnesses in persn. It has always been best practice t disclse witness statements in advance (and then allw the witnesses t be called at a disciplinary r grievance meeting if required). The new Acas cde f practice n disciplinary and grievance prcedures has encuraged this by stating that emplyees shuld have a reasnable pprtunity t call witnesses and give advance ntice t the emplyer f the witnesses they intend t call.

Previusly many disciplinary r grievance meetings have taken place withut the emplyer and emplyee calling witnesses in persn, fr example, reaching a decisin by just relying n the written statements themselves. Althugh there is n abslute right t call witnesses, if the emplyee asks fr them t be present the emplyer shuld allw it, r be prepared t argue that witnesses were inapprpriate in the circumstances. In practice, many meetings will still prceed withut witnesses attending in persn, either because it is nt necessary r apprpriate, r because witnesses will be reluctant t becme invlved particularly if they still wrk fr the emplyer. Witnesses shuld nt be pressurised by the emplyee int prviding evidence. Similarly they shuld nt be warned against giving evidence by the emplyer, if the emplyee has requested the presence f the witness. If witnesses d attend, then the emplyer and emplyee must be allwed t verify and questin then abut the infrmatin they have prvided. Different witnesses may have different versins f what happened and the emplyer must decide which witness is t be believed. (In sme cases there is a risk that the meeting then starts t seem mre like a tribunal hearing and will increase the length and acrimnius nature f the dispute.) In unusual cases witness evidence may be cnsidered annymusly, althugh the evidence may then be treated as having less substance. Fr mre infrmatin g t the questin belw n investigating cases f bullying and harassment n the basis f annymus witness statements. (Fr infrmatin n hw t decide which regime shuld be used in a disciplinary r grievance situatin and the transitinal arrangements see the questin abve). Can an emplyer r emplyee insist that there is an electrnic recrding f the meetings in disciplinary and grievance prcedures? N, neither an emplyer r an emplyee can insist n making an electrnic recrding f any disciplinary r grievance meeting. Althugh it is rare, the emplyer and emplyee may agree that a sund recrding is t take place, r the emplyer s wn prcedure may give emplyees the right t recrd hearings. Fr example, it may be apprpriate fr an emplyer t agree t a recrding where the emplyee is disabled and requests such a recrding as a reasnable adjustment t the usual prcedure t enable them t cpe with the prcess. The mre cmmn curse f actin fr prducing a recrd f meetings is fr anther emplyee (wh is nt invlved in the issues giving rise t the hearing) t attend and take ntes n a cnfidential basis. A full cpy f thse ntes will then be prvided t the emplyee after the hearing and an agreed recrd prduced and signed by bth parties. The emplyee and their cmpanin are als free t take ntes during the hearing. The statutry prcedures were remved in their entirety frm 6 April 2009, under the Emplyment Act 2008. (The Act des nt apply t Nrthern Ireland). The curse f actin suggested abve during any disciplinary r grievance meeting takes a reasnable apprach which is apprpriate bth befre and after 6 April 2009. What is the rle f the cmpanin at the meetings in disciplinary and grievance prcedures? During the meeting stages f the disciplinary grievance and dismissal prcedures, emplyees (and indeed wrkers) have a right t be accmpanied by a trade unin representative r a clleague. Failure t allw the emplyee t bring a cmpanin will lead t an autmatically unfair dismissal claim. Wrkers must make a reasnable request t their emplyer t be accmpanied. The right t be accmpanied applies t meetings where a frmal warning may be issued, r sme ther disciplinary actin (such as suspensin withut pay, demtin r dismissal) culd take place. It als applies t the cnfirmatin f a warning r sme ther disciplinary actin (such as an appeal hearing).the right des nt apply t infrmal discussins r investigatry meetings, althugh an emplyer may chse t grant an

emplyee's request t be accmpanied at any meeting. If the cmpanin is a clleague, the emplyer must give that persn time ff wrk t attend the hearing. Legal representatives Unless the emplyer agrees, an emplyee is nt usually permitted t take a slicitr alng t such meetings. An emplyer can therefre insist upn the basic legal psitin and say nly a trade unin representative r a clleague is permitted. Hwever, if the emplyer adpts a best practice apprach they may vluntarily allw the emplyee t be accmpanied by a lawyer if the emplyee wishes t instruct ne. Indeed, as explained belw an emplyer may vluntarily allw the emplyee t chse a family member as a cmpanin. In the past sme emplyees wh have been refused their request t have a lawyer present have alleged that this is a breach f Article 6 f the Eurpean Cnventin n Human Rights (right t fair trial). Case law has cnfirmed that it is generally nt a breach f Article 6 fr an emplyer t refuse t allw a legal representative at a disciplinary hearing (see Kulkarni v Miltn Keynes Hspital NHS Trust 2008 IRLR 949). Althugh recent case law has suggested that in certain limited cases the emplyee may be entitled t be represented by a lawyer at a disciplinary hearing. This is likely t be where the disciplinary meeting culd lead t very serius cnsequences such as the emplyee's name being added t the register f thse unsuitable t wrk with children - R (n applicatin f 'G') v Gvernrs f 'X' Schl (unreprted EWHC 504 18 March 2009, HC). Acas states that when wrkers are selecting a cmpanin, it wuld nt be reasnable t insist n being accmpanied by a clleague whse presence wuld prejudice the hearing r wh might have a cnflict f interest. Acas als reinfrces the fact that the emplyer must mentin the right t be accmpanied in the written cmmunicatin prir t the meeting being held and a gd practice apprach wuld allw the cmpanin t participate as fully as pssible in the hearing, including asking witnesses questins. Hwever, the actual law states that the emplyer must permit the cmpanin t d any r all f the fllwing: address the hearing put r sum up the emplyee's case respnd n the emplyee's behalf t any view expressed at the hearing cnfer with the emplyee during the hearing. The emplyer des nt have t allw the cmpanin t answer questins n behalf f the emplyee. If it is nt reasnably practicable fr the cmpanin t attend a meeting then the emplyer shuld re-schedule it. The emplyee must prpse an alternative date within five days and, if acceptable, the emplyer must then invite all parties t attend at this new time. Statutry prvisins Nte that the right t be accmpanied arises under the Emplyment Rights Act 1999 and therefre pre-dates the statutry minimum disciplinary and grievance prcedures. Althugh n 6 April 2009 the statutry prcedures were ablished under the Emplyment Act 2008, the right t be accmpanied still applies in the same way where an emplyer subjects a wrker t an internal grievance r disciplinary hearing. (The Emplyment Act 2008 des nt apply t Nrthern Ireland). A wrker may be accmpanied by a member f their family if the emplyer agrees, althugh there is n statutry right t insist upn that if the emplyer des nt agree. Emplyers may specify in the rganisatin s disciplinary r grievance prcedure that the emplyee may be accmpanied by a partner, spuse r legal representative.the new Acas cde f practice n disciplinary and grievance prcedures (new Acas cde) prvides cnfirmatin f the right t be accmpanied and guidance n hw it shuld be applied. Fr infrmatin n what emplyers must d t fllw the new Acas cde see the questin abve. Fr the distinctin between emplyees and wrkers see ur Emplyee status FAQ.

G t the Emplyee status FAQ (Fr infrmatin n which regime shuld be used in a disciplinary r grievance situatin befre and after 6 April 2009 and the transitinal arrangements see the relevant questin abve). Are there exceptins t the statutry grievance prcedures in frce befre 6 April 2009? Fr example if an emplyee refuses t fllw the prcedure claiming t be sick r intimidated? Yes, the statutry grievance prcedures did nt apply if there were reasnable grunds t believe cmplying with them wuld result in threats, fr instance because the emplyer was vilent, abusive r behaved unacceptably. Similarly, the emplyee did nt have t fllw the prcedure if they culd prve that factrs beynd the emplyee's cntrl made it impssible t g thrugh prcedures, fr example genuine sickness. If it can be shwn that they were malingering t avid ging thrugh the prcedures then any cmpensatin the emplyee received wuld be reduced. The statutry prcedures were remved in their entirety frm 6 April 2009 under the Emplyment Act 2008. (The Act des nt apply t Nrthern Ireland). Until then, emplyers had t fllw the prcedures in their previus frm. (Fr infrmatin n hw t decide which regime shuld be used in a disciplinary r grievance situatin and the transitinal arrangements see the relevant questins abve). Des a disciplinary prcedure have t be fllwed befre issuing ral r written warnings t an emplyee r suspending them n full pay? The rules gverning disciplinary and grievance prcedures are changed with effect frm 6 April 2009 under the Emplyment Act 2008. (The Act des nt apply t Nrthern Ireland). Hwever, the psitin cncerning ral and written warnings is essentially the same under the new and ld regimes. Emplyers d need t be familiar with bth regimes as the cnsequences f failure t fllw the prcedures are different. Fr the cnsequences f failure t fllw the regimes the questin abve n what happens if the statutry disciplinary and grievance prcedures r the revised Acas cde n disciplinary and grievance prcedures are nt fllwed. On r befre 5 April 2009 In accrdance with the statutry prcedures, actins falling shrt f dismissal such as warnings (ral r written) r suspensin n full pay did nt attract the statutry minimum disciplinary prcedure, but an emplyee wh feels aggrieved by the actin was entitled t initiate the minimum grievance prcedure. Hwever, a suspensin withut pay r with reduced pay was a frm f disciplinary actin t which the minimum standard statutry disciplinary prcedures applied. With respect t suspensins with reduced r n pay, until the statutry prcedures are repealed the mst cautius curse f actin was t fllw the statutry prcedures befre the suspensin - see belw. It was nt autmatically unfair if an emplyer fails t fllw the statutry prcedures befre the suspensin as lng as the required prcedures were fllwed in relatin t the dismissal itself. In A t B Travel Ltd v Kennedy (unreprted, UKEAT/0341/06 11 Octber 2006, EAT) the Emplyment Appeal Tribunal emphasised that suspensin is distinct frm dismissal. If a disciplinary plicy has set time perids after which warnings will expire, this shuld be adhered t. Hwever, in certain circumstances it may be relevant t cnsider the cnduct in the event f a repetitin.

On r after 6 April 2009 The statutry prcedures were remved in their entirety n 6 April 2009 under the Emplyment Act 2008. After the refrms emplyers shuld fllw the new Acas cde f practice n disciplinary and grievance prcedures (new Acas cde) befre issuing ral r written warnings t an emplyee r suspending them n full pay. The new Acas cde envisages that befre issuing a frmal warning emplyees will have been infrmed in writing f what is alleged and have had the pprtunity t state their case at a disciplinary meeting with the right t appeal against any disciplinary penalty. Depending n the utcme f the meeting the emplyee may be given a written warning r perfrmance nte which will be recrded, but disregarded after a specified number f mnths f satisfactry service. Wrkers, f curse, have the usual statutry right t be accmpanied by a cmpanin where the disciplinary meeting culd result in a frmal warning being issued; r the cnfirmatin f a warning r sme ther disciplinary actin. See questin abve n the rle f the cmpanin. (Fr infrmatin n t decide which regime shuld be used in a disciplinary r grievance situatin and the transitinal arrangements see the relevant questin abve). If an emplyer dismisses an emplyee fr an act f grss miscnduct and the emplyee subsequently prves their inncence, will the emplyee autmatically succeed in an unfair dismissal claim? An emplyer wh has dismissed an emplyee shuld have fllwed: the standard disciplinary and dismissal prcedure befre 6 April 2009 r, the new Acas cde f practice n disciplinary and grievance prcedures (new Acas cde) n r after 6 April 2009. If the emplyer has nt fllwed the abve regimes, there is a risk that the dismissal may be autmatically unfair (befre 6 April 2009) r nrmally unfair. An emplyer will be able t defend a 'nrmal' (that is nn-autmatic) unfair dismissal claim if they can shw they genuinely believed that the emplyee was guilty f miscnduct. The emplyer shuld have reasnable grunds fr their belief based upn reasnable investigatin This test was established in British Hme Stres Ltd v Burchell [1980] ICR 303, EAT and is valuable guidance t emplyers when cnsidering the sufficiency f the reasn fr dismissal fr miscnduct. Once the reasn has been established, a tribunal must then turn their attentin t cnsidering whether r nt the emplyer acted reasnably with regard t all the circumstances f the case, in treating this as sufficient reasn t dismiss. A tribunal cannt substitute its wn view, that is what they wuld have dne had they been the emplyer; instead it must nly cnsider the issue f whether the emplyer acted reasnably. The statutry prcedures were remved in their entirety n 6 April 2009 under the Emplyment Act 2008. (The Act des nt apply t Nrthern Ireland). Until then, emplyers had t fllw the prcedures in their previus frm. After the refrms emplyers will still have t shw reasnable grunds fr their belief based upn a reasnable investigatin and fllw the revised Acas cde. Fr infrmatin n what an emplyer must d t fllw the revised Acas cde see the relevant questin abve. (Fr infrmatin n hw t decide which regime shuld be used in a disciplinary r grievance situatin and the transitinal arrangements see the relevant questin abve).

Can an emplyer take disciplinary actin against several emplyees when they cannt prve which emplyee cmmitted the cnduct in questin? Where tw r mre emplyees are suspected f miscnduct and the emplyer, despite investigatin, cannt discver wh is t blame, it may be fair t dismiss several emplyees in relatin t the same incident withut the dismissal being unfair. The emplyees wuld be dismissed n a reasnable suspicin. (See Mnie v Cral Racing Ltd [1981] ICR 109, CA). In the case f Parr v Whitbread plc t/a Threshers Wine Merchants [1990] IRLR 39, EAT the EAT set ut 5 principles as a guide fr emplyers faced with the prspect f multiple dismissals: Wuld the cnduct if cmmitted by an individual justify dismissal? Was it reasnable t identify this particular grup f emplyees as having been capable f cmmitting the cnduct cmplained f? Culd each individual in islatin have cmmitted the act? Has the emplyer cnducted a thrugh investigatin? As a result f the investigatin is it reasnable t believe that mre than ne persn was invlved? Given the evidence, can the emplyer identify the culprit? Hw shuld an emplyer deal with a cmplaint f bullying? The first step in dealing with bullying r harassment in the wrkplace is t fllw the rganisatin's grievance prcedure with respect t the bullying, and the rganisatin's disciplinary and dismissal prcess with respect t the alleged perpetratr. A well drafted plicy will always include infrmal stages which shuld be fllwed in apprpriate cases. Sme rganisatins have an express plicy dealing with bullying which shuld crrespnd with the stages in the disciplinary and grievance prcess.the fllwing additinal pints shuld be emphasised: All emplyees and managers shuld be fully aware f the prvisins f the plicy and trained in its implementatin. The prcedures shuld be fllwed cnsistently with respect t all such allegatins. The plicy shuld als incrprate prcedures which crrespnd with the equal pprtunities plicy s that racial, sexual harassment etc can be identified and dealt with in a sensitive way. The plicy shuld state that harassment and bullying is nt and will nt be tlerated within the rganisatin and define what cnstitutes bullying and harassment. The rganisatin s grievance prcedure shuld be fllwed and all such prcedures shuld cater fr the pssibility that the line manager may be the surce f the grievance and therefre nminate an alternative senir member f management t hear the grievance. The fllwing steps will be essential: Investigatin A thrugh investigatin undertaken with care and sensitivity. Investigatins int allegatins f bullying shuld be as thrugh and impartial. The emplyer must prtect the rights f bth the alleged harasser and the persn making the cmplaint and, therefre, cnfidentiality is crucial. Reference t a trained cnfidential cunselling service as well as dealing with the grievance will help the emplyer s psitin. The cunsellr shuld have n direct rle in the grievance prcedure. The investigatin may begin with a thrugh cnfidential interview with the cmplainant t ascertain the facts: Wh was invlved? Were there witnesses?

When and where did the incident ccur? An indicatin f what the emplyee wants t happen, e.g. disciplining the persn cncerned, reallcatin f duties, rerganisatin f team members, relcatin etc. Mving the emplyee will nly be apprpriate where the cmplainant asks fr that rather than cntinuing t wrk with the alleged bully. Further steps Explain the prcedure in full t the cmplainant, and fllw that prcedure t the letter. Prepare written statements frm all witnesses in the investigatin. Interview the alleged harasser cnfidentially and keep a recrd f that. Advise the harasser f the allegatins against them and the disciplinary prcedure if necessary, listening t their versin f events, allwing them t be accmpanied if required. A cpy f the cmplainant's written statement may be given t the alleged harasser wh shuld be affrded an pprtunity t reply t the allegatins. Actin Fllwing the initial interviews (depending n the strength f evidence) if the cmplaint is valid the emplyer shuld take prmpt actin t stp the bullying. Actin taken by the emplyer may include suspensin n full pay and/ r invking the full disciplinary and dismissal prcedure which may lead t dismissal in serius cases. A verbal warning r written may be apprpriate in minr islated cases. Mnitr the nging relatinship between bth emplyees after the incident. If the emplyer des nt knw wh t believe and there is a ttal cnflict f evidence a very detailed investigatin shuld be undertaken. The senir manager handling the grievance shuld talk t all witnesses in an effrt t ascertain whether r nt the alleged incident ccurred. The emplyer nly has t have a reasnable belief based n a thrugh investigatin. It des nt matter if the emplyer is subsequently prved t be wrng as lng as they had a genuine belief that the incidents ccurred at the time they take actin. Can emplyers investigate cases f bullying and harassment in the wrkplace n the basis f annymus witness evidence? An emplyer shuld deal with a cmplaint f bullying in the usual way by fllwing the rganisatin's grievance prcess with respect t the bullying and the disciplinary and dismissal prcess with respect t the emplyee wh is alleged t be the perpetratr. See the questin abve n dealing with a cmplaint f bullying. This issue f evidence has been discussed n a number f ccasins in relatin t the disciplinary prcess. In cnsidering whether witness statements shuld be annymus cnsideratin needs t be given t balancing the interests f the parties, the need t prtect infrmants and the right f the emplyee t a fair hearing. The fllwing pints can be used as guidance. Statements shuld be in writing (these may be edited t remve names and preserve annymity) and be made available t the emplyee r their representatives. Statements need t be accurate with regard t date, time and place f each incident, the emplyee's bservatins and any ther relevant details. Is there any crrbrative evidence? Has the infrmant any reasn t fabricate evidence, fr example, a jealus jilted lver? Is the infrmant's fear genuinely sufficient t nt require them t be invlved in the disciplinary prcess further?

If at any stage in the disciplinary prcess the emplyee raises issues t be put t the infrmant then the emplyer shuld cnsider an adjurnment s the relevant questin can be put. In cases invlving infrmants careful ntes must be taken f the disciplinary hearing. These guidelines came frm the case f Linfd Cash & Carry v Thmsn [1989] IRLR 235, EAT. Hw far can an emplyer take int accunt miscnduct that ccurs ff-duty when cntemplating disciplinary actin? Cnduct that ccurs utside f the wrkplace can justify a dismissal. Hwever the cnduct must be f particular relevance t the jb in questin. In relatin t criminal charges an emplyer will still be required t cnduct a full and thrugh investigatin which may include suspensin f the emplyee. It is nt necessary t refrain frm any such actin until the utcme f the criminal prceedings is knwn; indeed such a delay culd render a ptentially fair dismissal unfair. Hwever, it is extremely imprtant that an emplyer carries ut their wn investigatin. Sme f the issues emplyers need t cnsider when cntemplating dismissal in such circumstances are: Is there an express term in the cntract r the disciplinary plicy gverning ffences utside the wrkplace? What is the nature f the miscnduct and des this have a bearing n the rle perfrmed by the emplyee? (Fr example, a care assistant in a residential hme f the disabled facing prsecutin fr assault.) Will there be an effect n the reputatin f the cmpany given the nature f the business? Des the incident invlve r affect ther emplyees? An example f these pints was the case f The Pst Office v Liddiard [2001] EWCA Civ 940 (7 June 2001) (reviewed in IDS Brief N 690, August 2001, pp 6-7). The tribunal had fund that emplyer had unfairly dismissed a cnvicted ftball hligan. Hwever, the Curt f Appeal decided the tribunal had nt cnsidered the issue central t the case, namely whether the emplyee's cnduct which led Pst Office t believe that they had been brught int disrepute was a sufficient reasn fr the dismissal. Are there any future develpments expected in the area f statutry disciplinary prcedures and grievance prcedures? Yes, frm 6 April 2009, under the Emplyment Act 2008, the statutry dispute reslutin prcedures were repealed. (The Act des nt apply t Nrthern Ireland). The details f the new legislatin and its implicatins are dealt with in the ther questins abve. Tribunal prcedure and ther changes As well as remving the statutry disciplinary and grievance prcedures the Emplyment Act 2008 ablished the fixed perids within which Acas must cnciliate. In anticipatin f this, Acas annunced n 1 April 2008 that it wuld cnciliate in all cases regardless f whether the fixed cnciliatin perid has already expired. Acas have als been given extra funding (estimated t be sme 37 millin) t amngst ther things, perate a helpline fr ptential emplyee claimants and respndents t answer individual emplyment questins and expand prvisin f early cnciliatin.

A review f the statutry dispute reslutin prcedures suggested significant further changes t emplyment tribunal prcedure t try and deter claims, including increased use f mediatin and ther frms f slving disputes. Tribunal chairmen are als given the pwer t sit alne in mre types f case with the parties cnsent. The types f case cvered will encmpass unlawful deductins frm wages, cntract cases, redundancy, natinal minimum wage and prbably hliday pay cases. Hwever the ther ptential changes recmmended in the review d nt all frm part f the Emplyment Act 2008. The further changes may include the fllwing: A free early dispute reslutin service(where apprpriate mediatin) befre a tribunal claim is ldged, fr thse disputes likely t benefit frm it. An advice service t ptential emplyee claimants and respndents, thrugh an adequately resurced helpline and the internet. Offering explanatins f the realities f tribunal claims and the ptential benefits f alternative dispute reslutin. Redesign f the emplyment tribunal applicatin prcess, s that ptential claimants access it thrugh the helpline and receive advice n alternatives when ding s. Simplificatin f the emplyment tribunal claim and respnse frms, remving requirements fr unnecessary and legalistic detail and encuraging claimants t give a succinct statement r estimate f lss. Unificatin f the time limits n emplyment tribunal claims and the grunds fr extensin f thse limits. Giving emplyment tribunals enhanced pwers t simplify the management f cases where many claimants are pursuing the same dispute with the same emplyer. Encurage emplyment tribunals t engage in active, early case management. Review the circumstances in which it is apprpriate fr emplyment tribunal chairs t sit alne, in rder t ensure that lay members are used in a way that adds mst value. Increased emplyment tribunals pwers t deal with weak and vexatius claims. Case law develpments Until the Emplyment Act 2008 is implemented, emplyers had t apply the statutry prcedures in their previus frm. There will be cases arising in 2009 n: 2009, the statutry prcedures relating t disputes befre 6 April 2009 will cntinue t emerge int the cnfusin between the ld and new regimes, and whether the revised Acas cde has been fllwed. This case law cncerning disciplinary and grievance issues will therefre cntinue t be a surce f future develpments fr the frseeable future. Fr details f develpments since this update see ur Recent develpments sectin. G t Recent develpments While every care has been taken in cmpiling these ntes, the CIPD cannt be held respnsible fr any errrs r missins; the ntes are nt intended t be a substitute fr specific legal advice. Cpyright CIPD 2009 151 The Bradway, Lndn SW19 1JQ, UK

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