Discipline and Grievance

The statutory discipline and grievance procedures have been in force now since October 2004 and so there is now some opportunity to review how the courts and tribunals are interpreting the regulations. It is also our view based on considerable observation that there is widespread bewilderment and confusion amongst employers as to how the procedures apply. This ignorance is potentially expensive as, where an employee is dismissed without the statutory minimum statutory procedures being followed, the dismissal is treated as automatically unfair. This entails a mandatory minimum award of 4 weeks pay (subject to the statutory limit currently £280) and for the compensatory award to be increased by a minimum of 10% and a maximum of 50% to reflect the degree of non compliance. In the recent case of Skinner v George Wilson Construction Ltd, where we acted for the Claimant, the Ashford Tribunal applied a maximum 50% uplift to reflect the fact that the Respondent company had failed to operate any procedure at all on an instant dismissal.

The Government has recognised that the statutory procedures have not worked very well and have been too prescriptive and legalistic despite their intentions being quite the opposite. The Employment Bill 2007 therefore abolishes the statutory procedures and reverts to a position that is reminiscent of the situation before. A Tribunal will have regard to whether ACAS Codes of Practice have been followed with the power to increase awards by up to 25% if not. Additionally, the powers to promote conciliation by ACAS are increased. It is expected that these new provisions will be in force at some point during 2009.

Before looking at recent developments it is worthwhile summarising the provisions laid out by the Employment Act 2002 (Dispute Resolution) Regulations 2004, to give them their full title. ACAS offer useful guidelines with flow charts which can be accessed here. A useful DVD with a free preview on the tribunal process can be ordered from their website.

Disciplinary Procedures (ACAS recommendations in italics) 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 then 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. The employee has the right to be accompanied by a colleague or trade union official to any of the meetings. That companion has the right to address the meeting to put the employee’s case, sum up or respond to views expressed at the hearing. Additionally the employee needs to be aware of what possible sanctions may be applied. If there is a risk of dismissal, say so. The procedures also apply to redundancies where the maximum number of employees being selected for redundancies is less than 20. The rationale for that is that where the numbers are more than 20 there is an obligation to notify and consult with trade unions or elected employee representatives. Before any meeting there should be a thorough investigation. The employee should be given copies of any information to be used and the employer should be prepared to consider fresh evidence if necessary. At the meeting the evidence should be stated, the employee given an opportunity to put his case and the companion given the opportunity to ask questions. The meeting should then be adjourned to consider the appropriate sanction.





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. ACAS suggest that an informal approach is sometimes best. Whilst we do not disagree with this advice, employers do need to be sure, that they do not deal with any complaint as an informal grievance unless the employee confirms agreement to this approach. The reasons for this will be apparent later.

It is important to know that these are the statutory minimum procedures. There still needs to be adequate investigation of disciplinary complaints as there does grievances. There also needs to be a separation of the role of investigator to that of the person chairing the discipline or grievance meeting or taking notes. Additionally the company’s own contractual procedures must be followed. If those procedures are more detailed and more prescriptive of the process, then provided that this is not in conflict with the statutory procedures, the company should follow their contractual procedures. Quite clearly by now all employers should have checked that their procedures comply with the statutory minimum.

Having summarised the minimum procedures, it is now worth looking at how those procedures have been applied. There may well be a few surprises. Employers must make a judgment in each and every case of a complaint from an employee about whether it constitutes a grievance. In essence, if it walks like a duck, then it probably is a duck. In the case of Shergold v Fieldway Medical Centre the Claimant wrote a lengthy resignation letter setting out the reasons for her resignation. She did not formally ask for it to be treated as a grievance, although she was asked to a meeting to discuss the issues. The Employment Appeal Tribunal held that there was no formality required in a statutory grievance letter. The requirements were minimal; all the employee needed to do was set out his/her complaint in writing and the fact that the grievance was contained in a letter of resignation made no difference at all, provided it set out a complaint. Equally there was no obligation to set out each and every detail of the complaint provided there was sufficient for the employer to understand the general nature of the complaint being made. This does make life potentially tricky for employers, particularly where their own procedures provide for an initial attempt to resolve grievances informally. We would suggest that where there is any scope for doubt, the employee should be asked to clarify whether their issue is to be treated as a formal grievance.

In another case of Commotion Ltd v Rutty, Mrs Rutty applied for flexible working. Her employer refused the request and she then resigned claiming constructive dismissal. The Tribunal agreed that there was a breach of trust and confidence. Given that no employee can bring a tribunal case without a grievance being lodged before hand, the Appeal Tribunal had to consider whether her request for flexible working constituted a step one grievance.

The Appeal Tribunal was also asked in the case of Holc-Gale v Makers UK Ltd to decide whether a questionnaire under the Equal Pay Act constituted a statement of grievance. The Tribunal held that it was not because it was specifically excluded from interpreted as being a grievance by regulation 14 of the Dispute Resolution Regulations.

Although the tribunal attitude to grievances seems to be reasonably relaxed, the interpretation of the disciplinary requirements seems more robust. In the case of Piscitelli v Zilli Fish Ltd, following dismissal the employee wrote attempting to negotiate a cash settlement. The Appeal Tribunal did not waste much time in dismissing the argument that this constituted an appeal.

The Future

Clearly the Government’s intention was that employment disputes would be resolved internally with the Tribunal service being the last resort. Given that the regulations have been in force now for sometime, do the Tribunal statistics bear this out? Statistics issued by the Tribunal service in July 2005 suggested that claims had fallen by 25%. However, statistics gathered by the Equal Opportunities Review suggested that the claims had fallen by a mere 3.5%.

The think tank Committed2Equality suggest that UK companies are spending £210 million a year on Employment Tribunal claims and they forecast that this will rise to £360 million a year once age discrimination is in force.

In our view it is too early to say whether the regulations have been a success and at least another 12 months statistics need to be considered before an opinion can be formed. At the moment it is entirely possible that pending tribunal claims have simply been delayed by going through internal grievance procedures and a dam will burst with them coming into the reckoning at some point. Our own view is that a lot more education is needed of both employers and employees if there is to be an improvement. It has to be right to try and solve differences internally, but for the moment it may just be enabling employers and employees to tick the relevant boxes without actually addressing staff relations.

Special care will continue to be needed in handling grievance complaints, particularly those involving bullying and harassment. Companies clearly have an interest in seeing grievances dealt with relatively informally and yet at the same time an email complaint to the line manager about work related problems, might easily be enough for a tribunal to regard it as a grievance. If the employer fails to respond in a formal fashion then it will be in default of the statutory procedures with all of the consequences that entails. The new procedures therefore, may yet drive companies and staff in to a formulaic approach to grievances which actually does precious little to solve the work place problems. Further guidance can be obtained from the Emplaw Guide pages of our website.

We do run seminars for employers on this and other subjects. If you would like to know more please e-mail us and we can either quote for an in house seminar or let you know when our next scheduled one takes place.