Discipline and
grievance issues
Disciplinary issues can result in unfair
dismissal cases, if mishandled. Grievances
can lead to low productivity, unwanted
resignations and even constructive dismissal
cases, if ignored. To stay on the right side of
the law and help both sides apply consistent
standards, disciplinary and grievance procedures
are a vital part of the management toolkit.
This briefing covers:
◆
The legal basics.
◆
Key disciplinary areas.
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Creating and using disciplinary procedures.
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Handling employee grievances.
The legal requirements
A Your employees’ written terms and
conditions must give basic information
about disciplinary rules.
B
◆
Terms and conditions must say who an
employee can apply to when appealing
against a disciplinary decision — and how
such an application can be made.
◆
If there are written disciplinary rules, the
terms and conditions must say where
employees can read them.
Every company must state in employees’
written terms and conditions who an
employee can apply to with a grievance.
◆
C
Recent cases make it clear that employees
have a legal right to redress for grievances.
Having and following written procedures
makes good business sense.
◆
If employees know and accept the rules,
they are less likely to break them.
◆
If there is no outlet for grievances, small
grumbles may grow.
◆
Written procedures will help you defend
any employment tribunal cases that arise.
Employees are more likely to accept rules
and procedures if they are consulted when
you are writing or amending them.
D New legislation on dismissal, disciplinary
and grievance procedures will come into
effect in October 2004.
◆
It will establish certain minimum
procedures which the aggrieved party
must follow before taking matters any
further. Your procedures must be
equivalent, or better.
◆
In particular, any disciplinary action which
is likely to result in anything other than a
warning or suspension on full pay, must
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normally involve a three-stage procedure.
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Repeated minor offences.
The problems must be set out in writing
and the employee must be given time to
think about his or her response.
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Misconduct.
◆
Gross misconduct.
◆
There must then be a face-to-face
meeting.
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The employee must be given the
opportunity to appeal if necessary.
Only in exceptional circumstances will you
be able to avoid the three-stage procedure,
though there is a ‘modified’ (two-stage)
version for some misconduct cases.
The idea is to slow down the escalation of
problems, or stop them altogether, before
they get to court.
Laying down the law
A Identify the areas in which you need
disciplinary rules. Typically these will be:
B
◆
Work performance, including sub-standard
work, slacking, poor timekeeping,
absenteeism, negligence and reckless
disregard for safety or hygiene regulations.
◆
Theft, including pilfering and fraud.
◆
Offensive behaviour, including abuse,
harassment, discrimination and violence.
◆
Inappropriate behaviour, including
drinking, drug-taking, gambling, smoking
in prohibited areas, misuse of company
facilities or, perhaps, inappropriate dress.
Decide how you are going to classify
different offences. In many small businesses,
this will involve using four categories:
◆
C
Determine what constitutes misconduct —
ie behaviour that is unacceptable to you
or unacceptable in the context of work.
◆
You may want to spell out rules
completely banning gambling, cash
collections and the distribution of political
literature, or enforcing a ‘clear desk’ policy.
◆
But many rules will be matters of degree.
(For example, how will you define
persistent lateness?)
◆
Negligence can be covered by your
disciplinary procedure, but you must treat
people absolutely consistently (see 3D).
D Define what acts are so serious that they
constitute gross misconduct — entitling
the employer to jump straight to the final
stage of the disciplinary procedure and
dismiss an employee without notice
(although fair procedures must still be
followed).
◆
Typical offences are dishonesty, theft,
taking bribes, gross insubordination,
falsifying company documents, fighting,
abuse of drink or drugs, using someone
else’s password, introducing viruses into
the company’s computers, downloading
Internet pornography, sending malicious
emails, and racial or sexual harassment.
◆
Particular industries and companies will
have their own sacking offences.
◆
Beware of jumping to conclusions. You
cannot sack an employee who has been
charged with theft without your own
investigation.
The fact that an offence is listed in your
handbook as gross misconduct is not
conclusive. A tribunal will decide for itself
whether the offence was ‘gross’ and if the
employer’s response was reasonable.
◆
In some gross misconduct cases, consider
suspending the employee — on full pay —
for a period while you investigate. Review
the suspension regularly to assess whether
it is still appropriate. Make it clear this
does not constitute disciplinary action or
indicate you think the employee is guilty.
Minor offences and misdemeanours.
Unfair dismissal?
Nearly half of tribunal cases are unfair dismissal
claims. In judging any claim by an employee
dismissed after disciplinary action, the tribunal
will run through what amounts to a checklist.
A Were the rules reasonable?
B
Did the employee know about them?
C
Did the rules avoid being inherently
discriminatory?
D Were they applied fairly and consistently?
E
Was a fair procedure followed?
F
Were the circumstances and degree of
the offence taken into account?
This question may be asked even where a
policy states dismissal is mandatory.
Handling disciplinary issues
Avoid breach of contract claims, by not making
your disciplinary procedure part of employees’
contracts (except where you cannot avoid it —
see Employment contracts, HR 4). But do
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make people aware of the rules and what
happens if they are broken.
A Issue a company handbook, or a separate
document, listing examples of misconduct
and gross misconduct, and explaining how
they will be handled.
◆
B
Make it clear these lists are not exhaustive.
Minor issues (eg occasional lateness) can
often be tackled informally, without
triggering the disciplinary procedure.
Make it clear that employees will not be
dismissed for a first breach of discipline,
unless there has been gross misconduct.
F
Provide a right of appeal, and explain the
process involved.
Acas has issued a new draft code, to guide
people through the legislation coming into effect
in October 2004. See www.acas.org.uk/
publications/pdf/cp01.2.pdf
◆
Discuss the problem, giving the employee
a chance to tell his or her side of the issue.
Using disciplinary procedures
◆
Explain that this is not a warning, but that
you will keep a file note of the meeting.
A Disciplinary procedures must be used if
an offence is grave enough for formal action
to be considered. Your procedure should
include four steps:
Appraisals offer a chance to deal with minor
disciplinary problems and defuse grievances.
C
E
For serious or repeated offences, follow the
formal procedure.
D Apply your rules consistently.
◆
E
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Verbal warning.
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Written warning.
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Final written warning.
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Finally, dismissal or other action.
For example, suspension without pay, fines
or transfers, demotion or loss of privileges
— but only if these penalties are provided
for in the contract of employment.
Do not give one person a warning and
just correct another in a similar situation,
without clear justification for doing so.
Do not give untrained managers the power
to make major disciplinary decisions.
◆
Many cases are lost because managers
depart from accepted procedures.
◆
Anyone launching any disciplinary action
should read the Acas handbook, Discipline
at Work (0870 242 9090).
Procedures in any disciplinary matter which
is likely to give rise to anything other than a
warning or suspension on full pay must be
equivalent to, or better than, the new
statutory requirements from October 2004.
B
The Code of Practice
Set the timescale for the stages of the
disciplinary procedure.
◆
Leave a stated amount of time for
improvement between warnings.
For performance issues, the time given
might vary with different types of work.
A PA might be given a week to improve,
but a senior sales manager six months.
An employee disciplined for offensive
behaviour or bad timekeeping could be
expected to behave better straight away.
◆
Tribunals always insist that both the time
allowed and the degree of improvement
demanded must be reasonable.
Your guide to disciplinary procedures is the Acas
Code of Practice. Tribunals must refer to it in all
disciplinary dismissal cases and at any other time
when it appears relevant. To comply with the
Code of Practice, you should:
A Put your disciplinary procedure in writing.
B
Say what disciplinary actions may be taken
and provide for issues to be resolved quickly.
C
Say who has the authority to take action.
C
D Tell employees about their basic rights.
These include the rights to:
If an employee’s behaviour or performance
fails to improve after appropriate warnings,
there may be no alternative to dismissal.
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Know the complaints against them.
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Ensure you have followed your procedure.
◆
Give their side of the story.
◆
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Have matters investigated, in an unbiased
way, before disciplinary action is taken.
Give appropriate notice, in line with
statutory rights or the employee’s contract.
◆
You will usually have to pay compensation
if you want someone to leave immediately,
except in gross misconduct cases.
◆
Whenever you dismiss an employee, give
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Be accompanied at hearings by a union
representative or work colleague.
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Be given an explanation for any penalty.
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the reasons in writing and enclose copies
of any supporting evidence. This will often
deter the employee from bringing a claim.
C
Devise an action plan for improvement to
tackle ongoing problems.
D Explain the employee’s right to appeal.
◆
◆
To guard against accusations of bias,
appeals should be handled by a senior
employee who was not directly involved.
In a very small company, there may be no
authority higher than the person who
imposed the original disciplinary decision.
Facing up to grievances
A The most common grievances relate to
new working practices, terms and conditions
(including pay) and personality clashes.
B
If possible, deal with grievances informally.
◆
◆
Pay particular attention to any new
evidence brought forward at an appeal.
Refusing to allow an employee to use the
appeals procedure may lead to greater
liability if an unfair dismissal claim is made.
E
Keep a detailed log of all disciplinary action
and full records of steps taken to investigate
and address the causes of the problem.
C
Aim to settle each grievance as near the
point of origin and as quickly as possible.
D Do not ignore grievances, or problems will
fester, affecting productivity and morale.
◆
Employees may leave, and you risk claims
for constructive dismissal.
◆
Resentment over lack of training or
promotion, or alleged victimisation, may
lead to complaints to a tribunal.
The disciplinary hearing
A Give the employee at least three clear
working days’ notice of a formal hearing
and written details of the issue.
B
Respect the employee’s rights (see 4D).
C
Make clear the consequences if there is no
improvement (eg penalties or dismissal).
Formal grievance procedures
A At present, grievance procedures in small
businesses commonly have three stages.
D Compose any written warning after the
hearing, not before, accurately reflecting the
warning given at the interview.
◆
Verbal warnings are usually valid for three
to six months, while final warnings may
remain in force for 12 months or more.
◆
State the duration of any written warning
in the warning letter.
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If there has been extremely grave
misconduct, you may state that the final
written warning will never be erased and
any repeat will be grounds for dismissal.
B
Give a first warning, but accompany it
with the offer of training.
◆
Counselling may be worth considering, if
family difficulties or illness underlie
behaviour and performance problems.
Stress that it is the behaviour you are
attacking, and not the person.
The employee starts by approaching his
or her immediate supervisor.
◆
The employee puts the grievance in
writing and seeks action from a manager.
◆
If the problem cannot be resolved, the
employee takes it to the highest level,
where the decision will be final.
B
Respond to grievances within a time limit.
For example, undertake to respond, at each
stage, within five working days.
C
Keep your disciplinary and grievance
procedures separate.
◆
A Be constructive and positive.
◆
◆
New grievance procedures, coming into
effect in October 2004, require a three-stage
process similar to that for disciplinary
matters. The problem must be set out in
writing, there must be a face-to-face
meeting, and the employee must have the
opportunity to appeal against the outcome.
Going for improvement
Aim to improve behaviour or performance, not
to punish the employee.
If a grievance seems irrational or trivial,
try to find the real problem behind it.
Anyone who can successfully claim to
have been victimised for using a grievance
procedure will usually win a tribunal case.
D An employee has the right to be
accompanied by a colleague or union
representative when a grievance is discussed.
E
Collective grievances are usually presented
by a union or employee representatives.
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