Discipline and Grievanceby Kate Russell
The legal framework – discipline and grievance
Throughout the 1990s, an average of 50,000 applications was made to employment tribunal each year. In the years immediately following the change of government in 1997, the number of applications rose sharply. Between April 2009 and 2010, claims to tribunal reached record levels of 236,000.
In 1998, the compensatory award (the element designed to put the employee back in the same position he would have been in if he had not been unfairly dismissed) increased from a maximum award for unfair dismissal of £12,000 to £50,000. This is index linked and is reviewed every year on 1st February. For current compensation figures, see Statutory rates.
In April 2012 the service qualification required to be able to claim unfair dismissal increased to 24 months. Employees will now have to gain two years’ service qualification in order to gain the protection of the unfair dismissal legislation. The increase in the qualifying period for unfair dismissal claims only applies to those starting a new job on or after 6 April 2012.
Employees whose employment started before 6 April will remain subject to the one-year qualifying period. This means that someone with 18 months’ continuous employment on 6 April will not lose his right to claim unfair dismissal, and an employee with 11 months’ service on that date will still only have to wait one month before being able to claim.
The statistics provided by ACAS suggest that almost half of the claims made are for unfair dismissal and that ex-employees win just over 40 per cent of those claims.
The Employment Act 2002 introduced the concept of a statutory dispute resolution process to try to stem the flood of claims being made to tribunal. Its expressed purpose is to help to build constructive employment relations and reduce the need for litigation. Unfortunately, the process created more problems that it solved and on 5th April 2009 the statutory dispute resolution regulations were repealed and immediately replaced by the ACAS Code of Practice 1.
The statutory ACAS Code of Practice 1 is intended to provide basic practical guidance to employers, employees and their companions and sets out principles for handling disciplinary and grievance situations in the workplace. The code does not apply to dismissals due to redundancy or the non-renewal of fixed term contracts on their expiry.
While the code does not have force of law, it is the benchmark of best practice for employment tribunals and they are required to have regard to it in considering claims.
One of the significant changes under the code is that a minor failure to follow procedure does not automatically make a dismissal unfair. There is still provision to allow an adjustment in compensation, up or down, by up to 25 per cent for unreasonable failure by either party to comply with any provision of the code. So an employer who has unreasonably failed to follow its procedures may face an increase in the compensation it has to pay by up to 25 per cent. Conversely, if an employee has unreasonably failed to follow the guidance set out in the code, the tribunal can reduce any award they have made by up to 25 per cent.
The code sets out the basic requirements of fairness that will be applicable in most cases; it is intended to provide the standard of reasonable behaviour in most instances.
The accompanying non-statutory guide contains sample disciplinary and grievance procedures.
Organisations may wish to consider dealing with issues involving bullying, harassment or whistle blowing under a separate procedure.
Whenever a disciplinary or grievance process is being followed, it is important to deal with issues fairly. The ACAS Code sets out a number of elements which constitute fairness:
- Employers and employees should raise and deal with issues promptly and should not unreasonably delay meetings, decisions or confirmation of those decisions
- Employers and employees should act consistently
- Employers should carry out any necessary investigations, to establish the facts of the case
- Employers should inform employees of the basis of the problem and give them an opportunity to put their case in response before any decisions are made
- Employers should allow employees to be accompanied at any formal disciplinary or grievance meeting
- Employers should allow an employee to appeal against any formal decision made.
Where some kind of formal action is needed, the decision about what is reasonable or justified will depend on the facts in each case. Employment tribunals will take the size and resources of an employer into account when reaching their decisions.
Investigations of potential disciplinary matters should be carried out as soon as reasonably possible to establish the facts. In some cases, this will require the holding of an investigatory meeting with the employee before proceeding to any disciplinary hearing. In others, the investigatory stage will be the collation of evidence by the employer for use at any disciplinary hearing. An investigatory meeting should not by itself result in any disciplinary action.
Where an employer considers that it is necessary to suspend an employee, the period of suspension should be as brief as possible, and it should be made clear that this suspension is not considered a disciplinary action.
In misconduct cases, where practicable, different people should carry out the investigation and disciplinary hearing.
If the investigating officer concludes that there is a disciplinary case to answer, he should write to the employee giving details of the time and venue and advising the employee of his right to be accompanied. This notification should give enough detail about the alleged misconduct or poor performance to enable the employee to properly understand the charges made and to be able to prepare. The letter should set out the possible consequences. Copies of any written evidence, which may include any witness statements, should be provided with the notification.
Hold the meeting in a timely fashion, but allow the employee reasonable time to prepare his case.
Employers and employees (and their companions) should make every effort to attend the meeting. At the meeting, the employer should explain the complaint against the employee and go through the evidence that has been gathered. The employee should be allowed to give his version of events and answer any allegations that have been made. The employee should be given a reasonable opportunity to ask questions, present evidence and call relevant witnesses. He should also be given an opportunity to raise points about any information provided by witnesses. Where an employer or employee intends to call relevant witnesses, they should give advance notice that they intend to do this.
Workers have a statutory right to be accompanied by a companion at a formal discipline or grievance meeting. The companion may be a work colleague or accredited trade union representative. The companion should be allowed to address the hearing to put and sum up the worker’s case, respond on behalf of the worker to any views expressed at the meeting and confer with the worker during the hearing. The companion does not, however, have the right to answer questions on the worker’s behalf, address the hearing if the worker does not wish it or prevent the employer from explaining its case.
To exercise the statutory right to be accompanied, workers must make a reasonable request. What is reasonable will depend on the circumstances of each individual case. It would not normally be reasonable for workers to insist on being accompanied by a companion whose presence would prejudice the hearing, nor would it be reasonable for a worker to ask to be accompanied by a companion from a remote geographical location if someone suitable and willing is available on site. If the companion is not available at the proposed hearing time and the worker suggests another time that is reasonable and falls within five working days of the original time, the hearing must be postponed until the new time proposed by the worker.
You may need to make arrangements for a different type of companion where an employee is disabled and might need additional help to participate in the process and present his case. For example, if an employee is deaf and his first language is British sign language, you may wish to arrange to have a BSL-trained interpreter present.
There’s no statutory right to be accompanied by a legal advisor. Two cases recently suggested that the employee’s right to a fair hearing would compromised by the employer’s denial of legal representation. However, in 2011 the Supreme Court reversed this approach in the important case of R (on the application of G) v Governors of X School and Y City Council , and the result is that employees at disciplinary hearings do not have an automatic right to legal representation.
G was a teaching assistant who allegedly kissed a boy of 15. The school took the matter to a disciplinary hearing. G asked to be represented by a solicitor, but was refused. He was dismissed and the governors were obliged to report this to the Independent Safeguarding Authority(ISA) where he would be considered for inclusion on the list of those unsuitable to work with children under the Safeguarding Vulnerable Groups Act 2006.
G issued judicial review proceedings, complaining that denial of legal representation at the initial disciplinary proceedings breached his rights under Article 6 of the European Convention on Human Rights, the right to a fair trial.
Initially he succeeded but on appeal to the Supreme Court, the Court found that Article 6 did not come into play at the initial disciplinary stage. The school was not concerned with G’s civil rights, merely his employment. The majority found that the hearing result would not have had a substantial influence on the later decision to place him on the list of people barred from working with children.
Lord Dyson in his lead judgment found that that the civil right in question was G’s ability to continue in his profession which involved working with children.Therefore a decision by the ISA to bar him would affect his civil rights and Article 6 would apply to those ISA proceedings.
In the view of the Court, it was not the school’s function to determine later proceedings concerning G’s civil rights. The only function of the school disciplinary panel was to determine whether G should continue to be employed and those proceedings did not have substantial influence over the ISA proceedings. The ISA is an independent body. In making the decision whether to place an individual on the barred list, it must assess fully the facts using its independent discretion. The court also recognised the risks surrounding a decision to require legal representation at disciplinary hearings.
The effect of the Supreme Court’s decision is that employees who are subject to ISA approval are no longer able to argue that they have a right to legal representation at disciplinary hearings due possible subsequent influence on later proceedings.
This decision may also affect employees regulated by other external authorities. The test to be employed will be that of “substantial influence or effect” on subsequent proceedings. Therefore if there is any risk of substantial influence or effect on subsequent proceedings it seems that Article 6 will be engaged, meaning there may well be a right to legal representation at the earlier stage.
In misconduct cases, where practicable, different people should carry out the investigation and disciplinary hearing.
After the meeting, decide whether or not disciplinary or any other action is justified and inform the employee accordingly in writing.
Where misconduct is confirmed or the employee is found to be performing unsatisfactorily, it is usual to give the employee a warning. A further act of misconduct or failure to improve performance within a set period would normally result in a final warning.
If an employee’s first misconduct or unsatisfactory performance is sufficiently serious, it may be appropriate to move directly to a final written warning. This might occur where the employee’s actions have had, or are liable to have, a serious or harmful impact on the organisation.
A warning should set out the nature of the misconduct or poor performance and the change in behaviour or improvement in performance required (with timescale). The employee should be told how long the warning will remain current. The employee should be informed of the consequences of further misconduct, or failure to improve performance, within the set period following a final warning. For instance, that it may result in dismissal or some other contractual penalty, such as demotion or loss of seniority.
If you give an inappropriately heavy warning at early stage, that can make a subsequent dismissal unfair.
This following case is drawn from my own experience so there is no case citation.
A woman, X, had worked for a company for 20 years, including several TUPE transfers. Her work involved regular interactions with the public. She had a clean disciplinary record, but this was largely because former managers had failed to manage her. She was something of a challenge and there had been several difficult periods during which her employer Q Ltd sought to manage her. All this was informal but had been documented.
Things came to a head when she made a remark which referred to racial origins and annoyed two third parties. Her manager spoke to her informally and was prepared to accept that her remark was not racist. She was given informal guidance that she should not repeat such remarks again. During the conversation she mimicked the Irish accent of one of the third parties, an employee of Q Ltd’s client. However, after being rebuked she accepted that this was inappropriate. She was later given a note of the meeting for her records. She showed this to a friend who had some connection with the company’s client. Rightly or wrongly, Q Ltd felt that the matter was provocative and showing the document to a person connected with their client could damage the already delicate relationship with their client. X was taken through the disciplinary process. The action was treated as gross misconduct and she was given a final warning which was upheld on appeal. Because of the relationship problems X was transferred to another site and a number of adjustments made to accommodate her pay and former working patterns. She went off sick with stress. Shortly after she came back she attended a dignity at work training session after which she verbally attacked the presenter in front of a number of witnesses.
X was taken through the process and dismissed. During the period running up to the disciplinary hearing and the hearing itself, X engaged in abusive and obscene language directed towards the managers dealing with the process. At no stage through the discipline or appeal processes did she seem to recognise that her conduct was inappropriate and ill judged, express remorse, demonstrate any commitment to meet the company’s standards going forward or ask for her job back.
She complained that she had been unfairly dismissed. She asked for reinstatement and compensation of £30k. It went to trial and the tribunal agreed with her on the basis that she had been unfairly dismissed. The company was not criticised for the final stage, but the giving of the final written warning was too harsh a sanction and it negatively impacted later disciplinary action.
However, the tribunal found that X was 80 per cent to blame for her dismissal, they refused reinstatement and she was awarded just over £1,000. A technical loss for us, but as close to a win as we could get in the circumstances.
The lesson to learn is that however trying an employee is, taken a cautious approach to applying sanctions. Less is more in these cases.
A decision to dismiss should only be taken by a manager who has the authority to do so. The employee should be informed as soon as possible of the reasons for the dismissal, the date on which the employment contract will end, the appropriate period of notice and their right of appeal.
Some acts, termed gross misconduct, are so serious in themselves or have such serious consequences that they may call for dismissal without notice for a first offence. But a fair disciplinary process should always be followed, before dismissing for gross misconduct.
Disciplinary rules should give examples of acts which the employer regards as acts of gross misconduct. These may vary according to the nature of the organisation and what it does, but might include things such as theft or fraud, physical violence, gross negligence or serious insubordination.
Where an employee is persistently unable or unwilling to attend a disciplinary meeting without good cause the employer should make a decision on the evidence available.
Where an employee feels that disciplinary action taken against him is wrong or unjust, he should appeal against the decision. Appeals should be heard without unreasonable delay and ideally at an agreed time and place. Employees should let employers know the grounds for their appeal in writing.
The appeal should be dealt with impartially by a manager who has not previously been involved in the case.
These points are revisited and discussed in more detail throughout this module.
You will find more information on the ACAS website.