Dealing with Grievance, Disciplinary & Dismissal

From the beginning of October 2004 (3 April 2005 in Northern Ireland) employees had new rights at work.

For the first time, every employee had the right to expect his or her employer – whether large or small – to have legal minimum procedures for dealing with grievances, dismissal and disciplinary action.

In return, the new law placed a duty on employees to follow the procedures, if he or she has a grievance to raise formally with their employer.
Both employees and employers need to understand these rights and responsibilities. They will help make the workplace fairer, but they could count against either party if they do not follow them.

The regulations lay down minimum procedures that both employers and employees must follow by law. If they are not followed, it could seriously affect an employee’s rights if they later make a claim. They may not be able to begin a tribunal claim or if they take a case to an employment tribunal and they decide it was their fault that procedures were not followed properly, compensation awarded will be reduced by at least 10 per cent and possibly up to half.

If an employer does not follow the procedures then compensation can be increased in the same way. If an employer sacks without following the new statutory dismissal and disciplinary procedure in full, an employment tribunal can decide that a dismissal was automatically unfair if the employee had been employed for more than a year.

Importantly, a tribunal will not normally accept a claim based on a grievance if the employee had not written to their employer about the grievance and waited for at least 28 days before filing the claim.

These procedures apply only to employees, not to ‘workers’. Subcontractors, freelancers or casual worker, are probably not an employee. Sometimes it is not obvious whether someone is an employee. If there are any doubts about status, advice should be sought.

Below we explain the main points only of the procedures.

How to raise a grievance

Grievance procedures enable an employee to raise with management any concerns they have about their job, their terms and conditions or the way their employer or the people they work with treat them.

An employer must now by law have a grievance procedure and must tell an employee what it is. Within two months of starting work, a new employer must be given written details about the job, like pay and hours, and this statement must include a note of the employer’s disciplinary and grievance procedures. It must also tell them who they should go to if they have a grievance.

If they have a grievance with their employer, they should normally attempt to sort it out informally at first. Raise the matter with the person specified in the grievance procedures, usually their line manager. If that is not possible, or if their problem is with that person, they should go to the next most senior person.

Remember: You should always make a note of any communications you have with employees about a work problem. Keep all correspondence and make a note of any meeting, including the date, who you met and the main points discussed. This may be useful later.

Formal grievance procedure

If they do take matters further, they must follow the statutory minimum grievance procedure, which has three steps. You may have a procedure that has more steps in which case you should follow that procedure, but make sure that this procedure includes the three minimum steps set out below.

The minimum three steps that must be followed are:

Step one: the written statement
The employee must send you a written statement or letter with details of their grievance, including dates and times if required. Make sure that the letter includes the date when it was sent. As a general rule, they will not be able to make a claim in an employment tribunal based on a grievance, unless they have put their grievance to the employer in writing, and given you at least 28 days to respond.

If they have several grievances, put each one under a separate heading and set them out so the complaint on each one is clear. Remember when dealing with a grievance, you may not know all about the complaint; make sure that the basis behind the grievance is clear, do not assume; seek clarification when required.

Step two: the meeting
You must then arrange an initial meeting to discuss their grievance. You can allow yourself time to look into the complaint but should not delay for an unreasonable length of time.

They have a right to be accompanied to the grievance meeting. They can choose someone they work with, a trade union official, or we would recommend you allow their IoS representative, who will take a balanced view of the issue and help both parties through what may be a difficult situation.

They have a duty to attend the meeting, which must be held at a time and place which is reasonable for them and anyone accompanying them. If either the employee or the representative are disabled, must take all reasonable steps to make sure that they have no problems getting to or participating fully in the meeting.

If they do not attend, a tribunal may later find them at fault for not completing the procedures and reduce any compensation. If, for an unforeseeable reason, they or the person accompanying them cannot attend, you must arrange another meeting and they must attend. If this meeting also has to be cancelled for an unforeseeable reason, then no further meetings need to be held and the procedures are treated as being complied with.

Prepare carefully for these meetings and discuss the matter fully with anyone assisting you. If there is anyone there you don’t know, ask them to introduce themselves. You should expect them to set their case out calmly and clearly and explain what they have done to try to resolve the problem informally.

You could make some further suggestions as to how the problem might be resolved. It helpful to get some idea from the complainant how they would like the grievance to be resolved. Be positive – suggest options if you think there are different ways of solving the problem that they may be happy with. However, try to keep the discussion to the point of the grievance.

After the meeting, take time to deliberate. If there is a lot of information, you may need time to interview other individuals to get a balanced viewpoint and clarify some of the issues. At some reasonable point, you must tell the complainant what you have decided. They have the right of appeal against any decision you make. They must use this right to appeal before taking any claim to an employment tribunal. If they do not, any compensation award will be reduced.

Step three: the appeal meeting
They should tell you employer in writing that they are going to appeal. You must arrange a further meeting to discuss the appeal. Again, it must be at a reasonable time and place and they have a right to be accompanied. Where it is possible, a more senior manager should deal with the appeal.

They have a duty to attend the meeting. If they do not attend, a tribunal may later find them at fault for not completing the procedures and reduce any compensation.

After this appeal meeting, you must tell them your final decision. If they are still not satisfied and they may be able to make a complaint to an employment tribunal. 

Raising a grievance after you have left your job

Generally, they will still need to use a grievance procedure if they have an outstanding grievance after they have left their job. It is important to remember that if you don’t use the right procedure, you can lose out at an employment tribunal.

In some cases, you can use a shorter, two–step procedure after they have left their job. This can only happen if the normal three-step grievance procedure has not been completed before they left and both parties agree in writing to use the two-step procedure.

In these circumstances:

1. they must send a written statement of grievance to you
2. you must write back answering the points raised.

In this case, they will still need to wait 28 days from the date of their letter before they issue a tribunal claim even if you reply earlier.

They will need to follow either the three step statutory minimum grievance procedure or this shorter two step procedure, if they are making a claim of constructive dismissal (where they resign because they are claiming a serious breach of contract).

When you do not need to follow the formal grievance procedure

1. If more than one employee is affected by the same grievance and it is raised with the employer by an official of a recognised trade union. In workplaces where a union is not recognised, a collective grievance can be handled by a union rep or employee representative who has been elected or appointed by employees to deal with such grievances. The employer must have agreed to use this collective procedure.
2. If there are reasonable grounds for believing that there would be a serious threat of violence or damage to property by one of the parties.
3. If they feel they have suffered harassment and reasonably believe they would suffer further harassment if they follow the procedures. Harassment means that there has been conduct which is offensive, humiliating, intimidating or violates dignity.
4. If it is not practicable to begin or complete the procedure within a reasonable period, for example, if one of the parties becomes seriously ill.
5. If they have left their job and it is not reasonably practical for them to send a written grievance to you. For example, s/he is living abroad, not traceable or dead.

Wherever possible employees should be advised to use the grievance procedures. Where they don’t, it will be up to them to prove to an employment tribunal that one of the above circumstances applies, if they want to rely on them. It will be for them to keep evidence, for example, doctors’ letters that can help to explain their position.
 
Dismissal and disciplinary procedure

A disciplinary and dismissal procedure is a set of rules that:
· allows employers to issue warnings or impose sanctions (including demotion or dismissal), on staff that they judge have broken rules about conduct or lack the capability to do their job properly
· helps to ensure staff are treated fairly and consistently.

As an employer you must now by law have a disciplinary and dismissal procedure and must tell employees what it is. Within two months of starting work, a new employer must be given written details about their job, like pay and hours, and this statement must set out the employer’s disciplinary and dismissal procedure or refers them to a document which sets out the procedure.

By law, if you are considering taking disciplinary action or dismissing an employee, you must comply with the statutory minimum three-step disciplinary procedure detailed below. Your disciplinary and dismissal procedure may have more steps than the statutory minimum procedure. If so, you should follow this fuller procedure, but make sure that it includes the three minimum steps as listed below.

Statutory minimum disciplinary and dismissal procedure

The standard three-step dismissal and disciplinary procedure:
1. The written statement
2. The meeting
3. The appeal meeting

Step one: the written statement
If you are considering disciplinary action or dismissal against an employee, your first step should be to send them a written statement, setting out exactly the complaint made against them. It should include all details of the complaint, most specifically the date of the misconduct.

It would usually be reasonable for you to provide the employee with evidence from any investigation that has been held so they have an opportunity to consider the information.

Step two: the meeting
Having sent the statement, you must arrange a meeting (sometimes termed a ‘hearing’) to discuss the issue with the employee. You should allow enough time allow them to prepare for the meeting but you should not delay the meeting for an unreasonable length time. You must not take any disciplinary action before the meeting.

They have a right to be accompanied at the meeting by someone who works with them,  a trade union official or , or we would recommend you allow their IoS representative, who will take a balanced view of the issue and help both parties through what may be a difficult situation.
They have a duty to attend the meeting, which must be held at a time and place, which is reasonable for them and anyone accompanying them. If either are disabled, you must take all reasonable steps to make sure that they have no problems getting to or participating fully in the meeting.

If they do not attend, a tribunal may later find them at fault for not completing the procedures and reduce any compensation.

If, for an unforeseeable reason, they or the person accompanying them cannot attend, you must arrange another meeting and they must attend. If this meeting also has to be cancelled for an unforeseeable reason, then no further meetings need to be held and the procedures are treated as being complied with.

Prepare carefully for the meeting and discuss the matter fully with anyone assisting you. If there is anyone there you don’t know, ask them to introduce themselves.  You should explain how the meeting will be held, who will speak and when.  You should then set out the allegations made against the employee and the evidence, which supports them. You may also call any witnesses where it is relevant to do so. Such evidence & witnesses can be cross-examined by the employee or their representative.
Listen to what the employee has to say and encourage them to give their side of the case, calmly and clearly when asked to do so. The employee has the right to submit evidence and witnesses and must be given the opportunity to do so. Such evidence can be cross-examined by you.

Ensure you have an independent person taking notes of what is being said and done.

After the meeting, you must tell the employee your decision and what action you are going to take. Do not rush to do this; if there is a lot of evidence, it is in your interest to consider it fully. This may mean sleeping upon it, especially if the potential outcome is dismissal.

You must tell the employee of their right to an appeal against the decision and any timescales which are stipulated within your disciplinary procedures for doing so. They must use this right of appeal before taking a claim to an employment tribunal. If they do not, any compensation award will be reduced.

Step three: the appeal meeting
If they decide to appeal, they must tell you within the stated timescales. They should do this in writing. Keep a copy of all documentation, as you may need it if the case goes to an employment tribunal. You must arrange a further meeting to discuss the appeal. Again, it must be at a reasonable time and place and they have a right to be accompanied.

If they do not attend, a tribunal may later find they are at fault for not completing the procedures and reduce any compensation.

They have a duty to attend the meeting. If, for an unforeseeable reason, they or their representative cannot attend, you must arrange another meeting and they must attend it. If this meeting also has to be cancelled for an unforeseeable reason then no further meetings need be held and the procedures are treated as being complied with.

Prepare carefully for the meeting and discuss the matter fully with the person assisting you. Take notes at the meeting.

After the meeting, you must decide what you is going to do and tell the employee what it is. Give yourself time to consider this decision carefully, overnight if need be. This is your final decision and if they are not happy with it they may be able to take your case to an employment tribunal.

Warnings

Employers often use a system of verbal and written warnings in disciplinary action, which will increase in seriousness leading to final written warnings and/or dismissal. The new law does not require employers to follow the three-step procedure if they simply want to issue a warning – even a final written warning. However, if you are thinking of taking any other action, such as deducting wages or demotion, you do have to follow the procedures.

Suspensions

An employer can suspend an employee on full pay without having to go through the procedures. However, if pay is reduced, the procedures will have to be followed. Although the disciplinary procedures do not apply in these circumstances, they can raise a grievance about the warning or suspension under the normal grievance procedure.

Wherever possible employees are advised to participate in a disciplinary or dismissal procedure that you initiate, including any appeal. Where they don’t, it will be up to them to prove to a tribunal that one of the circumstances below applies, if they want to rely on them.
· if there are reasonable grounds for believing that there would be a serious threat of violence or damage to property by one of the parties
· they consider they have suffered harassment and reasonably believe they would suffer further harassment if they follow the procedures. Harassment means conduct which is offensive, humiliating, intimidating or violates dignity
· if it becomes not possible to begin or complete the procedure within a reasonable period, for example, if one of the parties becomes seriously ill.

They should provide evidence, for example, doctors’ letters to help explain their position.

Grievances arising during disciplinary proceedings

The procedures make special provision where an employee wants to raise a grievance whilst they are subject to disciplinary proceedings. Normally any dispute they have over the disciplinary process will be dealt with by that process and no grievance needs to be raised.

However they may feel that the disciplinary action is being taken for other reasons or that it is discriminatory. In such a case they should write a grievance letter to you. If they do this at any stage before the disciplinary appeal hearing, the matter can be dealt with at the disciplinary hearings. If they raise the grievance after the appeal, the full grievance procedure must be followed.

They do not need to start a grievance procedure over a disciplinary or dismissal matter unless:
· they are complaining about discrimination
· the disciplinary action/dismissal reason was wholly unrelated to the employer’s stated reason
· they are complaining about constructive dismissal

Instant dismissals

An instant dismissal, where the employer has not made any investigation of the circumstances, is nearly always unfair. In the exceptional cases where an employer would be entitled to dismiss an employee without an investigation, the employer must write to the employee explaining the reasons for a dismissal and informing them of their right to appeal. If the employee chooses to appeal, the employer must arrange a meeting at which the employee will have the right to be accompanied. The employee is under a duty to attend the appeal meeting.

When the employer does not need to follow the minimum statutory procedure

There are circumstances where an employer is allowed to dismiss someone, or take disciplinary action, without going through the procedures because it would not be practical to do so. These are:
· a collective redundancy, where the employer is proposing to make more than 20 employees redundant and is consulting with officials of a recognised trade union or an elected employee representative.
· when an employer lays off a group of staff and immediately re-hires them under different terms and conditions
· when employees are dismissed for taking industrial action. (In the case of lawful, officially-organised action, special arrangements apply)
· where it would be illegal to continue the employment
· sudden and unforeseen stoppage of the employers business, for example, when a pool burns down.

In addition there are some circumstances where neither the employer nor the employee, have to follow the procedures:

· if there are reasonable grounds for believing that there would be a serious threat of violence or damage to property by one of the parties
· they have suffered harassment and reasonably believe you would suffer further harassment if they follow the procedures. Harassment means conduct which is offensive, humiliating, intimidating or violates your dignity
· if it becomes not possible to begin or complete the procedure within a reasonable period, for example, if one of the parties becomes seriously ill.

Valid reasons for not lodging a written grievance with the employer:

· they are not an employee
· the application is brought under a law not covered by these procedures, for example, their right to request flexible working has not been accepted
· it was not practical for them to put the grievance in writing to you or take further steps in a reasonable time, for example, if you or they, have gone abroad
· they are no longer employed and it is not reasonably practicable to write the grievance letter for example, s/he is living abroad, not traceable or dead.
· they have reasonable grounds for believing that putting their grievance in writing to their employer would result in significant threat to them or their property or some other person or their property
· they believe they have been subject to harassment and have reasonable grounds to believe that putting the grievance in writing to you would result in further harassment
· the grievance was put to you in writing by an appropriate representative, on behalf of the employee and at least one other employee
· they have raised the grievance under an industry level grievance procedure that has been agreed between at least two employers or an employers’ association and one or more independent trade unions
· they have raised the matter that is the subject of their grievance as a “protected disclosure” under the public interest disclosure (‘whistle blowing’) provisions in the Employment Rights Act 1996.

(Assistance from the Citizens Advice Bureau in the formulation of this section is much appreciated)