CIPD - Discipline and grievances at work

Employment law

Revised April 2009

This factsheet gives introductory guidance. It:

considers good practice in handling disciplinary and grievance issues
summarises the new regime which applies from 6 April 2009, and the statutory procedures which applied before then
endorses the new Acas Code of Practice for handling disciplinary and grievance issues
includes the CIPD viewpoint.

Why are disciplinary and grievance procedures necessary?

Disciplinary and grievance procedures provide a clear and transparent framework to deal with difficulties which may arise as part of their working relationship from either the employer's or employee's perspective.

They are necessary to ensure that everybody is treated in the same way in similar circumstances, to ensure issues are dealt with fairly and reasonably, that employers are compliant with current legislation and follow the Acas Code of Practice for handling disciplinary and grievance issues (see below).

Disciplinary procedures are needed:

So employees know what is expected of them in terms of standards of performance or conduct (and the likely consequences of continued failure to meet these standards).
To identify obstacles to individuals achieving the required standards (for example training needs, lack of clarity of job requirements, additional support needed) and take appropriate action.
As an opportunity to agree suitable goals and timescales for improvement in an individual's performance or conduct.
To try to resolve matters without recourse to an employment tribunal.
As a point of reference for an employment tribunal should someone make a complaint about the way they have been dismissed.

Grievance procedures are needed:

To provide individuals with a course of action should they have a complaint (which they are unable to resolve through regular communication with their line manager).
To provide points of contact and timescales to resolve issues of concern.
To try to resolve matters without recourse to an employment tribunal.

The legal position

The statutory procedures for handling discipline and grievance issues introduced in October 2004 were widely criticised and, although the provisions were only in force for under five years, the statutory dispute resolution procedures were repealed in their entirety with effect from 6 April 2009 when the provisions of the Employment Act 2008 were implemented. (Those in Northern Ireland should note that the Employment Act 2008 is not applicable there - the Department for Employment and Learning has published detailed guidance - see Useful contacts below).

From 6 April 2009 the important provisions governing discipline and grievances at work are to be found in:

The Employment Act 2008 and
The Employment Tribunals (Constitution and Rules of Procedure) (Amendment) Regulations 2008

Numerous other pieces of legislation cross refer to discipline and grievance issues. Some important examples include the:

The Employment Rights Act 1996 as amended
The Employment Rights Dispute Resolution Act 1998
The Employment Relations Act 1999
The Employment Rights Act 2004.

Until 6 April 2009 employers should have been following the statutory procedures. However, behaving reasonably in handling disputes continues to be crucial after that date, with employers’ disciplinary, grievance and dismissal procedures and the Acas Code of Practice being even more essential to ensure that such behaviour is adopted.

The statutory disciplinary, dismissal and grievance procedures in force until April 2009

The statutory disciplinary, dismissal and grievance procedures amounted to a minimum standard that all employers and employees were obliged to follow until 6 April 2009.

The main features of the procedures were:

Three step statutory disciplinary, dismissal and grievance procedures
Failure to follow the statutory procedures by the employer prior to dismissal rendered that dismissal automatically unfair.
Employers could have faced a potential increase in compensation of between 10-50% if the procedures were not followed.
An employee may have been prevented from presenting some types of claim in the employment tribunal if they had not followed the grievance procedure first.

These procedures applied in a wide range of circumstances which were not limited to issues relating to the capability or conduct of the employee but, for example, to dismissals which occured on the expiry of a fixed-term contract and in smaller scale redundancies.

The original Acas Code of Practice Disciplinary and Grievance Procedures¹ provided detailed guidance for employers. This Code has been revised to reflect the removal of the statutory procedures and the new version came into force on 6 April 2009. CIPD endorses the Code.

In situations where the trigger event occurs on or after 6 April 2009, an employment tribunal will consider whether the employer has followed the Acas Code and, if they have not, then the tribunal may adjust any awards made by up to 25% for unreasonable failure to comply.

CIPD members can find out more on the transitional provisions, the legal aspects of this topic and likely future developments from our FAQ on Discipline and grievances procedures in the Employment Law at Work area of our website.

Go to the Discipline and grievance procedures FAQ

Disciplinary policy and practice

Using the disciplinary process

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

Capability/performance

It is inevitable that at some stage all employers will encounter difficulties with the performance of their employees in the workplace. Many employers will have a specific capability procedure to deal with such matters. It is good practice and also more efficient that such issues are addressed informally, as and when they arise. Only when informal options have been exhausted and where there is no alternative should managers enter a more formal disciplinary or capability 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 absence management for more information.

Go to our Absence management factsheet

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, even gross misconduct, an employer should attempt to follow the recommendations in the Acas Code.

Stages of the process

If disciplinary action is to be taken, it should always have 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 new Acas Code recommends at least these three steps in the majority of cases.

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. The HR department should be able to assist them 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, and that they have a chance to arrange an appropriate representative if they wish.
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. You can also take breaks 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, and to select a companion of their choice. It would be good practice for an employer also to offer this at any purely investigatory meeting.

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 likely:

recorded oral warning
first written warning
final written warning.

Disciplinary warnings should normally have a specified 'life' after which they are disregarded when considering any subsequent warnings. Typical timescales for the types of warning are:

recorded oral warning - 6 months
first written warning - 1 year
final written warning - 2 years.

Where misconduct has been very serious, it may be appropriate for the warning to continue to be regarded indefinitely.

Dismissal

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

Go to 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.

CIPD members can find out more from our FAQs on unfair dismissal and wrongful dismissal in the Employment Law at Work area of our website.

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.

Go to our Harassment and bullying at work 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 for the individual, then matters should be raised formally through the grievance procedure.

Handling grievances formally

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

the three stages of the statutory procedure 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.

CIPD viewpoint

Ensuring that people are treated fairly and enabling them to work in a non-hostile environment are important factors in the creation of a productive working environment. The CIPD believes that where possible employers and employees should seek to resolve most matters that arise in the course of the working relationship informally. This approach helps minor concerns to be resolved speedily without the need to take recourse to formal action. It also limits disruption to work and reduces any personal embarrassment in discussing issues of concern.

Disciplinary and grievance procedures are essential when informal mechanisms are ineffective, or where they are inappropriate given the nature of the issue arising. These procedures can also help prevent unnecessary staff turnover and absenteeism, as well as avoiding costly and time-consuming tribunal cases.

It is essential that those implementing these procedures have the necessary training and guidance to do so, in line not just with minimum legal obligations but also with the principle of fairness and natural justice. CIPD endorses the Acas Code.

Useful contacts

Acas

Business Link

Department for Business, Enterprise and Regulatory Reform

Department for Employment and Learning (Northern Ireland)

References

ACAS. (2004) Disciplinary and grievance procedures. Code of Practice 1. London: Acas.
ACAS. (2009) Disciplinary and grievance procedures. Code of Practice 1. London: Acas. Available at: http://www.acas.org.uk/CHttpHandler.ashx?id=1047

Discipline and grievances at work