Disciplinary & Grievance

Using the disciplinary process

There are two main areas where a disciplinary system may be used: capability/performance and conduct.

Capability/performance
Capability issues may arise because an employee does not have adequate training, or is unable to do the work to a satisfactory standard for another reason. An employer must try to identify the reason and give appropriate support, prior to invoking a formal procedure.

Situations where an individual is unable to do their job because of ill-health may also fall into this category. In these instances an employee should be dealt with sympathetically and offered support. However, unacceptable levels of absence could still result in the employer making use of warnings. See our factsheet on managing absence for more information.

• Please contact us for our Absence Management fact sheet.

Conduct
Employee misconduct could range from continued lateness, failure to follow a reasonable management instruction, abuse of the organisation’s computer system or Internet access, bullying behaviour or creating a hostile work environment, through to theft, fighting and committing criminal offences. The more grave offences may constitute gross misconduct. In all cases, an employer should follow the recommendations in the Acas Code.
Stages of the process
If disciplinary action is to be taken, it should usually have at least three main stages:

• letter
• meeting
• appeal

There must always be a full and fair investigation to determine the facts and to decide if further action is necessary. The Acas Code recommends at least these three steps in the majority of cases. However, in some cases a second meeting stage may be appropriate.

Record-keeping
All records should be kept meticulously, as this will be vital should a case be taken to an employment tribunal. The type of records that should be kept by employers are minutes of meetings, emails, attendance notes, notes of telephone calls, copies of correspondence etc.

Handing disciplinary interviews
All line managers should be trained and supported so that they are able to carry out disciplinary meetings with their team. We can assist you by providing a source of advice on preparing for and conducting the interview and relevant legislation.

The key points to consider are:

• Ensure all the facts are investigated in advance (including consulting the individual’s personal file for relevant information) and plan how the meeting is to be approached.
• Make sure the employee knows from the letter inviting them to the meeting why they have been asked to attend and that they have a right to have a companion present.
• Make sure the individual has reasonable notice, ideally more than 72 hours.
• Provide appropriate statements from people involved in advance of the meeting, together with any key information you intend to rely on.
• Make sure another member of management can be there to take detailed notes and help conduct the interview.
• Never pre-judge the outcome of the interview before hearing the employee’s perspective.
• Start the interview by stating the complaint to the employee and referring to appropriate statements from people involved.
• Give the employee ample opportunity to put forward their side of the story and call any supporting witnesses.
• Employers can also call witnesses, but they can only be in the room for the relevant part of the interview – not the duration.
• Make use of adjournments: always take a break to consider and obtain any extra information you need before reaching your decision. Adjournments can be useful if things become heated or people are upset during the interview.
• Deliver the decision (and give reasons, taking into account any mitigating circumstances), confirm review periods and ensure you give details of how to appeal.
• Confirm the decision in writing.
•  It is important that everyone involved in disciplinary action understand the importance of following the correct procedure, as even if the case against an employee seems proven, they can still be deemed to have been treated unfairly if the correct procedures are not followed.

An individual is entitled to be accompanied by a work colleague or trade union official at formal disciplinary and grievance interviews. It would be good practice for an employer also to offer this at any purely investigatory meeting. Employers do not have to allow other companions (for example family members or lawyers) but may do so if they wish.

Potential outcomes

No action
After the meeting, the employer may decide that no action is necessary. For example, if an employee was unclear about what was expected from them and they agree to try to resolve the issue via additional support or counselling.

Warnings
Alternatively, the employer may decide to give the employee a warning. An organisation’s policy should outline exactly what warnings will be given, but the following are examples of warnings and organisation may use:

• verbal/ oral warning (Acas no longer recommends this stage as part of a formal procedure but, for cases of minor misconduct, this will often be a reasonable method to prevent a problem escalating.)
• first written warning/improvement notice
• final written warning.

Employers should specific a ‘life’ for formal disciplinary warnings after which they are disregarded for disciplinary purposes. Typical timescales suggested in the Acas non statutory guidance for the types of warning are:

• first written warning – 6 months
• final written warning – 1 year.

It may be appropriate for a warning to continue to be regarded for a longer period, provided the timescale was specified in the organisation’s disciplinary policy from the outset. The time period employers select for warnings to remain current, and the penalties imposed, must be reasonable in all the circumstances. For example, they must take into account the nature of the misconduct, the employee’s disciplinary record and be consistent with penalties imposed in similar cases. .

Dismissal
There are currently five potentially fair reasons for dismissal. These are given in our dismissal factsheet.

• Please contact us for our factsheet on dismissal.

Employers need to be sure that any decision to dismiss an employee will be seen as ‘reasonable’ by an employment tribunal. The employer must follow the Acas Code prior to any dismissal and also have been fair overall, for example by complying with internal procedures, treating employees consistently and carrying out a proper investigation.

There was a previously a sixth fair reason – ‘retirement’ – to dismiss an employee. However this no longer applies.

If, despite the employer’s efforts, a tribunal claim results following the dismissal, then both parties are encouraged to attempt to resolve the dispute by early conciliation using Acas or some other means of dispute resolution. The parties may also enter into a settlement agreement. The Government has implemented changes in this area especially concerning the way in which settlement discussions can be initiated. The use of Acas early conciliation has also been reformulated. Please contact us find out more from our FAQs on unfair and wrongful dismissal.

Grievance policy and practice
It is essential that grievances from employees are treated in the same fair manner and all line and senior managers must be familiar with their organisation’s grievance procedure.

There are a number of additional factors to bear in mind when dealing with grievances concerning harassment. For further details see our factsheet on bullying and harassment in the workplace.

• Please contact us for our Harassment and bullying factsheet

Handling grievances informally
Individuals should be encouraged to discuss ordinary, day-to-day issues informally with their line manager. This helps concerns to be heard and responded to as soon as possible.

Where this has been unsuccessful, or circumstances make this route inappropriate, employers should consider using mediation – more information can be found in our guide for employers.

If matters remain unresolved, they should be raised formally through the grievance procedure.

Handling grievances formally
Employees should also be aware of the formal route open to them, including:

• all stages of the Acas Code and any further elements of the organisation’s additional procedures
• with whom to raise the complaint and appropriate sources of support
• timescales within which the organisation will seek to deal with the complaint
• details of the stages of the grievance procedure, for example, how a complaint may be raised with the next level of management if a satisfactory resolution is not reached.

An employee should be given the right to be accompanied to grievance hearings by a colleague or trade union representative as explained above.

As in disciplinary matters, record keeping is important and the Acas Code should be followed.