As the Employment Tribunals continue to receive high numbers of claims each year, in particular unfair dismissal (see elsewhere in this Alert), it is important to remind ourselves of the basic disciplinary and grievance procedures an employer must follow to ensure a ‘fair’ process. Of course, your internal procedures may be more detailed and you should follow these where possible. You should also be aware that following a fair process will not automatically render a dismissal fair, as you must have a fair reason and act reasonably throughout, but it will strengthen your position!

Disciplinary procedures
An employer’s right to dismiss an employee without following a disciplinary procedure, despite the seriousness of an employee’s conduct, is becoming a thing of the past. This is because there are many situations where an employee can bring a claim during their first year of employment and employers can only establish an appropriate form of discipline once they have followed a fair disciplinary process.

So what is a fair procedure?
You must comply with the ACAS Code of Practice as a minimum disciplinary procedure. There are some basic principles you should consider:

  1. Investigate the allegations and where necessary inform the employee of the investigation.
  2. Set out any allegations in writing to the employee. Your letter should set out the basis of the allegations, include any documentary evidence, invite the employee to attend a disciplinary meeting, set out the potential outcome of the disciplinary process (eg, dismissal), the employee’s right to be accompanied and details about a disciplinary meeting.
  3. Hold a disciplinary meeting with the employee to discuss the allegations, providing the employee with the opportunity to put their side forward in respect of the allegations, to answer any questions that you or the employee may have, to call relevant witnesses and to make any comments in respect of the information provided by any witnesses.
  4. Review the information obtained at the disciplinary meeting and during the investigation.
  5. Notify the employee in writing of your decision together with the reasons for this and outline the employee’s right to appeal the decision together with the time limit for doing so.
  6. If the employee wishes to appeal, hold an appeal meeting with the employee and their chosen companion. Following the meeting and a review of the disciplinary process, inform the employee of your final decision.
    An appeal should be impartial – therefore, ensure that (wherever possible) a more senior manager who has not previously been involved in the process conducts the appeal meeting.

Is the employer’s decision reasonable?
Your decision to discipline or even dismiss an employee may be a reasonable response to an employee’s conduct.

You must establish that there are reasonable grounds for having the belief in the employee’s misconduct at the time of the disciplinary decision and following a reasonable investigation into the misconduct. This will help you to show that your decision fell within the ‘band of reasonable responses’ if an employment tribunal claim is brought.

What are the alternatives to dismissal?
When conducting a disciplinary process, you must consider the appropriate and proportionate consequence of the employee’s conduct.

You should take guidance from your disciplinary policy and procedures as it will not always be appropriate to dismiss an employee for misconduct. You should also adopt a consistent approach throughout your workforce.

For less severe misconduct issues we suggest that a series of warnings are considered as these provide an employee with an opportunity to improve. Warnings will normally consist of a first written warning and a final written warning.
You should consider previous warnings and whether they are still ‘live’ when imposing a disciplinary sanction. Your disciplinary policy may also entitle you to impose other sanctions such as demotion or suspension without pay.

Grievance Procedures
As an employer, you are likely to experience aggrieved employees from time to time and it may be necessary to conduct a formal grievance procedure to address the employee’s concerns. Of course, issues can be resolved informally but this should be the employee’s decision and you should be careful to ensure that you do not trivialise something that should have been dealt with on a formal basis. You should also ensure that your managers are trained to identify grievances. This is particularly important when dealing with potential whistleblowing or harassment claims for example.

So what is a fair procedure?

  1. The employee should inform you about their grievance in writing.
  2. You should appoint an appropriate person to deal with the grievance. This will usually be the employee’s line manager but not, for example, where the grievance is against that line manager, or where the complaint is of a serious nature where a more senior manager is advisable.
  3. You should invite the employee to a grievance meeting to discuss their grievance. The employee has a right to bring a companion.
  4. The meeting will give the employee the opportunity to outline their grievance and you should ask how they think that it should be resolved as this helps to focus matters.
  5. You should investigate all issues at an appropriate level in order to make an informed decision in respect of the grievances.
  6. You should notify the employee of you decision in writing together with the reasons without unreasonable delay. The letter should specify that the employee is entitled to appeal within a stated timeframe. It should also outline any follow-up arrangements, for example, for re-integrating the employee into the work place.
    As with a disciplinary appeal, ensure that (wherever possible) a more senior manager who has not previously been involved in the process conducts any appeal meeting.

Right to be accompanied
An employee is entitled to be accompanied by a colleague or a Trade Union representative to all grievance or disciplinary meetings (including appeal meetings) and this must be made known to the employee.

In the majority of cases, an employee will not be entitled to legal representation at a disciplinary meeting. However, employers should consider and seek legal advice where a disabled employee is seeking a legal professional’s attendance as a reasonable adjustment or because they could potentially lose their professional registration as a consequence of a dismissal (eg, a doctor’s registration with the GMC).

Witnesses
You should give an employee a reasonable opportunity to call witnesses to their grievance or disciplinary meeting in order to support their position or to respond to allegations made against them. Equally, you will be entitled to call witnesses where appropriate. In each case, both parties should have the opportunity to raise any points in respect of the witnesses’ evidence.

Both parties should give notice to the other of witnesses that will attend a meeting including the witnesses’ details.

If you rely on witness statements instead of calling witnesses to the meeting itself, you must ensure that these are made available to the employee within a reasonable time before the meeting. This also applies to any other documentary evidence that you wish to rely upon.

Suspension
Sometimes it will be desirable to suspend an employee as a consequence of an allegation of serious misconduct or perhaps due to the risk of interference with witnesses whilst a disciplinary or grievance process is conducted. You should have reasonable cause to suspend before you adopt this approach and you should be mindful that suspension should not be for longer than is reasonable.

Suspension should be on full pay unless otherwise provided in your contractual policies and procedures – any such provisions should provide for a deduction in the event a disciplinary sanction is imposed as opposed to reducing pay before any finding has been made.

Action points:

  • Check policies and procedures are up to date and at least in accordance with the ACAS Code of Practice;
  • Check contracts of employment to ensure that reference is made to the disciplinary and grievance procedures. If you do not have separate policies and procedures you will need to ensure that the disciplinary and grievance procedures are contained within the statement of employment in accordance with Section 1 of the Employment Rights Act 1996;
  • Ensure that all managers are suitably trained in the disciplinary and grievance procedures;
  • Ensure that all managers carry out fact-finding investigations and keep a paper trail of all matters and investigations surrounding both a disciplinary and a grievance procedure;
  • Seek legal advice if you believe that a disciplinary process had been incorrectly followed before you proceed to dismiss an employee as the dismissal may be considered to be unfair on procedural grounds.