Discipline and Grievance

The statutory disciplinary and grievance procedures that came into force in October 2004 have now been abolished, or have they?

Employers and employees alike may have given thanks that the ritualistic tick box approach of the statutory procedures has been abolished but, in reality, their effect may be with us for some time. For a start, tribunals will still have cases going through the system for some considerable time that were founded in the statutory regime. However, it is conceivable that cases presented after 6 April 2009 will still need to be decided by the old rules.

We look at dismissals and grievances separately.

Dismissals

What matters is when the employer contemplated taking disciplinary action. If the employer contemplates disciplinary action before 6 April 2009, the statutory procedures will apply regardless of the date of dismissal. If a step 1 or step 2 letter has been sent prior to 6 April 2009, then any tribunal action will have to judge the dismissal under the statutory procedures. More complicated perhaps, is the situation with redundancies. Is the dismissal contemplated at the start of the consultation period or at the end when the dismissals occur? A good case can be made for arguing that the notification at risk is the relevant trigger. For this reason, we repeat the old step 1, 2 and 3 procedures below.

Disciplinary Procedures Step one. The employer must set out in writing the employee’s conduct or characteristics that might lead to disciplinary action or dismissal and send a copy of it to the employee inviting him/her to attend a meeting to discuss the matter. Step two. Although an employer can suspend the employee pending a meeting, no other action must take place until then. The meeting cannot take place unless the employee has been told the basis for the employer’s belief that warrants the invitation to the meeting. The employee also has to be given an opportunity to consider his response to that letter. The employee then has to take reasonable steps to attend the meeting and after the meeting, the employer must inform the employee of its decision and the right of appeal. Step three. If the employee intends to appeal, he must notify the employer and the employee then has to be invited to a further meeting. The dismissal can take place before the appeal meeting but clearly if the appeal is successful, there would have to be a re-instatement and recompense for any lost earnings. After the appeal meeting, the employee must be notified of the final decision in writing.

Grievances

If the matter or event complained of occurred before 6 April 2009, any tribunal hearing will have to be conducted according to the old rules. If the matter complained about is ongoing conduct that started before 6 April 2009 and the grievance is made before 5 July 2009, the old rules will apply. However, confusion will reign in circumstances such as a grievance about discrimination being made before April 2009 but where the discrimination continues. An employee might have complained in March 2009 but finally say enough is enough in March 2010. At this juncture, nobody knows whether the old rules would apply or not. We therefore set out the old rules.

Grievance A grievance is defined as “a complaint by an employee about action that his employer has taken or is contemplating taking in relation to him”. It can be assumed that that includes the actions and behaviour of fellow employees. As with disciplinary procedures there are three steps. Step one. The employee must set out the grievance in writing and send a copy to the employer. Step two. The employer must then invite the employee to a meeting to discuss the grievance. However, this meeting does not have to take place until the employer is told the basis for the grievance and has an opportunity to consider it. The employee then has to take reasonable steps to attend the meeting and after the meeting be notified of the finding of the grievance investigation and the right of appeal. Step three. If the employee wishes to pursue an appeal he must notify the employer and then be invited to a further meeting. After the meeting the employer must notify the final decision.

The New Procedures

Essentially, we go back to a position which is governed by the Acas code of practice. Additionally, the Department for Business, Enterprise and Regulatory Reform (BERR) has produced guidelines for avoiding and resolving discipline and grievance issues at work.

Dismissal

The Acas code does not cover redundancies or the non-renewal of fixed terms contracts. These are dealt with under a separate Acas booklet on redundancy handling. Acas recommends that employers and employees should deal with issues promptly and not delay meetings.

• There should be a reasonable investigation.

• Employers should inform employees of the basis of the problems.

• Employers should allow employees to be accompanied at disciplinary or grievance meetings.

• There should be a right of appeal.

• It is also recommended that in misconduct cases, different people should carry out the investigation and disciplinary hearing.

• If there is a disciplinary case to answer the employee should be notified of this in writing and offered enough information to allow the employee to prepare and answer a case. They should also be advised of their right to be accompanied.

In general terms, a large part of the statutory procedures are carried over into the Acas code of practice. The major difference is that this is not prescriptive. Under the old procedures failure to carry out the process in a tick box fashion would leave the employer with a finding of automatic unfair dismissal. The old scenario would leave the employer exposed to an increase of 50% in the compensation. There is still some scope for a tribunal to increase compensation by 25% if the Acas code of practice is not followed. We assume that there would need to be some serious failure for that to happen. Again, some regard would be given to the size and administrative resources of the employer; something that was noticeably absent from the statutory procedures.

Grievance

The employee is encouraged to try and resolve grievances informally, but if not able to do this, should raise the matter formally and without unreasonable delay. This should be done in writing so that the employer can understand what the complaint amounts to. As before, the employer should invite the employee to a meeting, allow the employee to be accompanied and provide for a right of appeal.

Where a grievance is raised during the disciplinary process, Acas suggests that the disciplinary process should be temporarily suspended to deal with the grievance unless they are essentially the same subject matter.

As under the pre 2004 situation, the employer will be able to argue a Polkey reduction. That is simply legal shorthand for the employer being able to say that it is acknowledged that the due processes were not followed but the same result would have come about, or that there was some contributory fault.