Disciplinary Grievance Procedures

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CHARITABLELIMITEDCOMPANIES

There are three

DISCIPLINARY

AND GRIEVANCEPROCEDURES

Disciplinary procedures are used when employers take disciplinaryaction against employees for misconduct or poor performance.

Grievance procedures are used by employees when they make acomplaint to their employers.

ACAS statutory Code of Practice

The Acas statutory Code of Practice on discipline and grievanceprovides basic practical guidance to employers, employees and theirrepresentatives and sets out principles for handling disciplinary andgrievance situations in the workplace. TheCode does not apply to dismissals due to redundancy or the non-renewal of fixed term contracts on their expiry.

It comes into effect by order of the Secretary of State on 6 April 2009and replaces the Code issued in 2004. A failure to follow the Codedoes not, in itself, make a person or organization liable toproceedings. However, employment tribunals will take the Code intoaccount when considering relevant cases. Tribunals will also be able toadjust any awards made in relevant cases by up to 25 per cent forunreasonable failure to comply with any provision of the Code. Thismeans that if the tribunal feels that an employer has unreasonablyfailed to follow the guidance set out in the Code they can increase anyaward they have made by up to 25 per cent. Conversely, if they feelan employee has unreasonably failed to follow the guidance set out in

the code they can reduce any award they have made by up to 25 percent.Employers must take care that:

They follow their own procedures strictly

They follow ACAS code of practice

They keep adequate records of what takes place at each stage(including minutes of meetings or interviews, records of

warnings, decisions and the reasons for decisions).


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Legal position transition period

The compulsory statutory disciplinary procedure rules introduced in 2004 were abolished,subject to transitional measures noted below, with effect from 6th April 2009

Dismissal cases.

The "old" 2004 compulsory statutory disciplinary procedure rules continue to apply if theemployer dismissed the employee before 6th April 2009 or if the employer started thedisciplinary procedures required by the 2004 compulsory statutory rules before 6th April 2009

If the employer started the disciplinary procedures leading to dismissal on or after 6th April2009, then the "old" 2004 compulsory statutory disciplinary procedure rules do not apply.Instead the new semi-voluntary ACAS Code of Practice applies .

Grievance cases.

The "old" 2004 compulsory statutory grievance procedure rules continue to apply if the actionabout which the employee is complaining took place wholly before 6th April 2009

What disciplinary policies and procedures should contain

For clarity, a procedure should specify:What behaviour is acceptable and what is not (this may be contained in separate rulesof conduct within the organisation)

Who is bound by the policy and who has power to enforce it and when

What action is taken at each stage and by whom

The rights and methods of appeal.

For fairness, a procedure should say:No action will be taken without investigation first

Matters will be dealt with promptly

Employees are adequately informed in writing of complaints made against them and oftheir rights to be accompanied at hearings and to appeal at each stage of the procedure

Employees are allowed to respond to the complaint before any decision to discipline ismade

Employees have the right to have a colleague or union rep present at any disciplinaryinterview or appeal

Any decision (whether at interview or on appeal) should be communicated to theemployee in writing

Employees have a right of appeal against decisions

No employee will be automatically dismissed for a first occasion of misconduct unless itis gross misconduct.


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Formal and informal disciplinary procedures

The procedure document should provide for both of these. Formal disciplinary proceduresshould only begin if informal discussions and clear targets for improvement have failed, or thecase is too serious to be dealt with informally. You may want to consider suspending anemployee accused of gross misconduct on full pay while an investigation is carried out.

Informal (spoken) warnings can be used for minor breaches, and as a way of ensuring thatemployees understand what conduct is appropriate and what the job requires of them. Theyare strictly speaking more to do with management than discipline.

Formal procedures (used for more serious offences, or where the informal procedure has notbeen effective) will take four stages, although they can be entered into at any pointdepending on the severity of the misconduct:

formal spoken (oral) warning

first written warning

final written warning

dismissal.

In conducting any disciplinary procedure, it is important that the employer keeps carefulwritten records of any meetings or correspondence. If possible, the minutes of meetingsshould be agreed by the employee or their representative.

Investigations

Before conducting a disciplinary interview or taking a decision to discipline, an employershould make sure that it has first obtained all relevant information and facts. This will guardagainst employees being disciplined unfairly or the employer being found to be in breach ofits own procedures in a Tribunal. It can also be an opportunity to enable the employee toimprove, to clear the air, or to inform the employee of their rights.

Disciplinary meeting

If it is decided after investigation that there is a disciplinary case to answer, the employeeshould be notified of this in writing. This notification should contain sufficient informationabout the alleged misconduct or poor performance and its possible consequences to enablethe employee to prepare to answer the case at a disciplinary meeting. It would normally beappropriate to provide copies of any written evidence, which may include any witness

statements, with the notification.

The notification should also give details of the time and venue for the disciplinary meetingand advise the employee of their right to be accompanied at the meeting.

The meeting should be held without unreasonable delay whilst allowing the employeereasonable time to prepare their case.


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Right to be accompanied

Workers have a statutory right to be accompanied by a companion where the disciplinarymeeting could result in: a formal warning being issued; or the taking of some other disciplinary action; or

the confirmation of a warning or some other disciplinary action (appeal hearings).

The chosen companion may be a fellow worker, a trade union representative, or an officialemployed by a trade union. To exercise the statutory right to be accompanied requests forrepresentatives must be deemed to be reasonable.

Appeal

Where an employee feels that disciplinary action taken against them is wrong or unjust theyshould appeal against the decision. Appeals should be heard without unreasonable delay andideally at an agreed time and place. Employees should let employers know the grounds fortheir appeal in writing. The appeal should be dealt with impartially and wherever possible, bya manager who has not previously been involved in the case. Workers have a statutory rightto be accompanied at appeal hearings. Employees should be informed in writing of the resultsof the appeal hearing as soon as possible.

Dismissal

NoticeInstant (or summary) dismissal can only be justified when the employee has been guilty ofgrossmisconduct, eg. violence, theft, fraud, serious negligence resulting in damage or injury

at work, deliberately damaging the employers property, dangerous incapability while atwork through drink or drugs, gross insubordination, bullying or harassment and where thecontract allows an employee to be summary dismissed. In any other cases, the employer willhave to give the employee adequate notice. This will be either the minimum legalrequirement if no notice period is contained in the contract, or the length of notice specifiedin the contract, which cannot be less than the minimum legal requirement.

The minimum legal requirement to notice depends on the employees length of service:

More than one month but less than two years: 1 week

Two years but less than three years: 2 weeks

For each completed year of service after two years: one extra week up to a maximum

of 12 weeks

Employees may also be offered pay in lieu of notice, so that they leave immediately, but arepaid for their notice period. However, the employer cannot insist on this if the employeedoes not agree, unless the employer can show a risk to its business or to the employee if theemployee does not leave immediately.


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Reasons for dismissal

The employer should provide reasons for any dismissal, which is why careful records needto be kept of any proceedings which lead to a dismissal. Reasons for dismissal comeunder six headings:

1.

Misconduct2. Incapability (the employee is unable to do the job)3. Redundancy (the employees post is no longer required by the employer)4. Illegality (it is no longer lawful for the employee to continue doing their job)5. Some other substantial reason not included in the above (eg. necessary reorganisation

of the employers business, making necessary economies or technical changes orprotecting the employers business interests).

6. Retirement (If the employment contract ends because of retirement this is a type ofdismissal. In order for retirement to be a fair dismissal you must follow the legalretirement procedure. This means you must give at least six months' notice ofretirement. If employees want to continue working past retirement then you must

consider thier application.

Unfair dismissal and wrongful dismissal

Employees who have had two years continuous employment with their employer are given aright not be unfairly dismissed under section 98 of the Employment Rights Act 1996. If theyfeel they have been unfairly dismissed, they can claim compensation and/or reinstatement inan Employment Tribunal.

Employees with less than two years can sue for wrongful dismissal (breach of contract) in aCounty Court if they consider that their employer has not complied with the terms of the

contract regarding notice or notice pay (or other payments on termination). They cannot suefor compensation for unfair dismissal.

In all cases, the employer is still obliged to conduct a reasonable investigation beforedismissing an employee. This is one reason why good disciplinary procedures are soimportant.

Fair, unfair and constructive dismissal

In order for a dismissal not to be unfair under the Employment Rights Act, the employerhas to show that:

the grounds for the dismissal come within one or more of the six reasons given inreasons for dismissal above

it genuinely believed that there were adequate grounds for dismissal

this belief was held reasonably.

These three criteria together are called substantive fairness.


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In deciding whether an employers belief was held genuinely and reasonably, an EmploymentTribunal will look at the procedure used to investigate the complaint against the employee,the steps and decisions taken as a result and the reasons for those decisions.

Some dismissals are treated as automatically unfair under the 1996 Act. An employee willhave the right to claim unfair dismissal in a Tribunal even if they have less than two yearsservice, if the dismissal is because of:

trade union membership or activities

pregnancy or a reason connected with pregnancy

taking maternity leave

demanding a statutory employment right

taking action on health and safety grounds

a claim of unlawful discrimination made by the employee

acting as an employee representative

transferring to another job

a criminal record when the employee is protected by the Rehabilitation of OffendersAct.

A third form of dismissal is constructive dismissal. This can happen when an employee isforced to resign or leaves because of the employers actions (or failure to take action), orbecause of the behaviour of other employees. A constructive dismissal may be either fair orunfair depending on the employers actions.

Grievance Procedures

It is important to define a grievance, which is different from a complaint. A grievance iswhere an employee considers that the employer has not honoured the terms and conditions ofemployment, or where an employee thinks the employer have applied the terms unfairly or

unequally. A complaint is when someone outside the organization complains about theemployee or the organisation which could lead to a disciplinary action by the employer.

In practice, however, the procedures used to investigate and deal with grievances andcomplaints can be very similar. A grievance procedure is a formal process which allowsemployees to bring a grievance to the attention of the management and to have a decisionmade on it.

This should provide that the employee will be given a fair hearing initially, has a right ofappeal, is entitled to be accompanied by a colleague or trade union rep when raising agrievance or making an appeal, and will not be victimised, particularly if s/he has raisedhealth and safety issues or tried to ask for a statutory right. The procedure should deal withfour stages as a minimum:

written grievance submitted by the employee

a meeting to consider the grievance at which the employee may be accompanied by acolleague or trade union representative

decision

appeal


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Again, as with disciplinary procedures, careful written records should be made at all stages asto what steps the employer takes to resolve the problem. For example, if an employee withthe right not to be unfairly dismissed, resigns because s/he brought a substantial grievancethat was not dealt with or dealt with inadequately, they could claim ' constructive dismissalagainst the employer in an Employment Tribunal.

A grievance procedure needs to state that employees should first try to resolve the issues ofcontention informally through normal channels of communication. It should provide forgrievances to be dealt with quickly and without having to resort to overly complex processes.

The stages of a grievance procedure could be as follows, each to be taken within a specifiednumber of working days:

Employee raises matter with her/his manager in writing.

If the grievance is with the line manager, the procedure states with whom theemployee should raise the grievance

There is a meeting to hear the employees grievance

The decision is communicated to the employee in writing

If the employee is not satisfied with the decision, s/he can appeal in writing to a namedperson or body

The appeal is held and the final decision given in writing to the employee

In the most exceptional cases, if no satisfactory conclusion is reached, the employee and/orthe employer may approach ACAS or some other mediation service for advice and assistance.It needs to be stressed that this should be a last resort, as turning to ACAS is usually a sign offailure on the part of the management. The role of ACAS is a strictly neutral one ofarbitration and mediation. Before becoming involved, ACAS require agreed terms of referencefrom both sides. Whatever ACAS recommends should be the final outcome of the grievance.


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Organisations that can advise and help

Advisory, Conciliation and Arbitration Service(ACAS)Yorkshire and Humberside RegionThe Cube123 Albion StreetLeeds LS2 8ERTel: 08457 47 47 47 (employment queries)

or 08457 38 37 36 (customer services enquiriesonly)

Website:www.acas.org.uk/

Voluntary Action SheffieldHR Advice ServiceThe Circle33 Rockingham LaneSheffield S1 4FWTel: 0114 2536633Fax: 0114 2536601Website:www.vas.org.uk/

Useful publications

BIS and ACAS produce a series of bookletsdesigned to give guidance and informatioto employers on all aspects of employmenlaw. You can get them free of charge byphoning 0845 0150010 (BIS) 08702 409090(ACAS).website atwww.bis.gov.uk/publicationsand ACASs websitehttp://www.acas.org.uk/index.aspx?articid=1340

ACAS has also produced a code of practicedocument on Disciplinary and GrievanceProcedures that you can obtain from ACAon the number given above. You can alsodownload them from the ACASs website.

Voluntary but not Amateur Just About Managing The Voluntary Sector Legal Handbookby Sandy Adirondack and James SinclairTaylorAll from Directory of Social ChangeTel: 08450 77 77 07website atwww.dsc.org.uk/publications

Employing a Worker Sheffield CityCouncils Grant Aid Information PackTel: 0114 273 4113
http://www.acas.org.uk/http://www.acas.org.uk/http://www.acas.org.uk/http://www.vas.org.uk/http://www.vas.org.uk/http://www.vas.org.uk/http://www.bis.gov.uk/publicationshttp://www.bis.gov.uk/publicationshttp://www.bis.gov.uk/publicationshttp://www.acas.org.uk/index.aspx?articleid=1340http://www.acas.org.uk/index.aspx?articleid=1340http://www.acas.org.uk/index.aspx?articleid=1340http://www.dsc.org.uk/publicationshttp://www.dsc.org.uk/publicationshttp://www.dsc.org.uk/publicationshttp://www.dsc.org.uk/publicationshttp://www.acas.org.uk/index.aspx?articleid=1340http://www.acas.org.uk/index.aspx?articleid=1340http://www.bis.gov.uk/publicationshttp://www.vas.org.uk/http://www.acas.org.uk/


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INFORMATION SHEETS available from VAS:

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The Circle33 Rockingham Lane

Sheffield S1 4FWTel: 0114 253 6600Fax: 0114 253 6601

Email: [email protected]: www.vas.org.uk

Registered charity no: 223007Company limited by guarantee no: 215695

Disciplinary Grievance Procedures

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