Discipline and Grievance

by Kate Russell

Common questions

  1. What’s the difference between conduct and capability?
  2. Can I just give someone a warning if they’re doing something wrong?
  3. Who can act as a companion?
  4. Can the person who carries out the investigation chair the disciplinary hearing?
  5. What does ‘totting up’ mean?
  6. Why do I need rules?
  7. What sort of thing should rules cover?

 

1. What’s the difference between conduct and capability?

Conduct refers to a breach of standards which the employee chooses not to meet, for example, timekeeping or not wearing PPE.

Capability refers to a breach of standards which the employee cannot meet for some reason. For example, he does not have the skills to carry out certain work.

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2. Can I just give someone a warning if they’re doing something wrong?

Sometimes, an informal discussion is what is required to correct matters, but if an employee is failing to meet your standard in some way that cannot de brought to a satisfactory conclusion simply with an informal discussion, you should investigate to establish whether there is a case to answer and convene a formal disciplinary meeting to discuss matters.

You should write to the employee telling him what the concerns are and giving evidence supporting those concerns and advising of the right to be accompanied. You should meet to discuss the matter. Once you’ve heard what he has to say, adjourn to consider. Where you decide to award some form of disciplinary sanction, advise him of his right of appeal. Confirm this in writing.

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3. Who can act as a companion?

If you ask your workers to attend certain grievance or disciplinary hearings, they have a statutory right (if they request) to be accompanied by a fellow worker or accredited trade union official. This right applies irrespective of how many workers you employ. If you refuse a request from a worker to be accompanied at a formal disciplinary or grievance hearing, the worker may make a complaint to an employment tribunal.

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4. Can the person who carries out the investigation chair the disciplinary hearing?

As a general rule, the tribunals expect the investigating officer and the disciplining officer to be different individuals, especially when you are considering dismissal. This ensures a more independent assessment of the facts before any decision is made about a disciplinary sanction. There is no legal requirement for the two parties to be different.

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5. What does ‘totting up’ mean?

Totting up is the term used for taking a live sanction into account when making a decision about a further breach of standards. You can only tot up like with like, in other words conduct with conduct or poor performance with poor performance.

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6. Why do I need rules?

Before drawing up a disciplinary procedure, you will need to consider what standards the procedure will be used to maintain. Rules set standards of conduct at work. They should be fair, reflect the needs of the organisation and written in a way that everyone understands.

If people know and accept the rules, they will be less likely to break them. Rules help ensure a consistency of management action and can improve efficiency.

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7. What sort of thing should rules cover?

It depends upon the nature of your business, but rules can cover:

  • Gross misconduct
  • Timekeeping
  • Absence
  • Holidays
  • Health and safety
  • Standards of work
  • Personal appearance
  • Use of organisation facilities
  • Smoking
  • Non-discrimination.

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