CIPD - Discipline and grievances at work

Employment law

Originally issued May 2004; latest revision May 2007

This factsheet gives introductory guidance. It:

considers good practice in handling disciplinary and grievance issues
summarises the statutory procedures which came into force in October 2004 and proposals for their reform
endorses the 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 and that they are compliant with current legislation.

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

Most of the provisions governing discipline and grievances at work are currently to be found in the Employment Act 2002 and the detailed regulations made to implement the provisions of that Act namely the Employment Act 2002 (Dispute Resolution) Regulations 2004 (SI 2004/752).

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

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

The Employment Act 2002 (Dispute Resolution) Regulations 2004 have been been widely criticised: they have created complex legal issues and have failed to achieve their key objectives such as reducing the number of tribunal claims. In March 2007 the then Department of Trade and Industry (DTI) published an independent review of the dispute resolution procedures (the ‘Gibbons review’) which recommended that the repeal of the procedures in their entirety. The successor to the DTI, the Department for Business, Enterprise and Regulatory Reform (BERR) is currently consulting on these proposals and for the time being, employers should continue to follow the current statutory procedures. But whatever the outcome, behaving reasonably in handling disputes remains crucial and disciplinary, grievance and dismissal procedures will still be essential to ensure that such behaviour is adopted.

The current statutory disciplinary, dismissal and grievance procedures

The statutory disciplinary, dismissal and grievance procedures amount to a minimum standard that must be followed by all employers and employees.

The main features of the procedures are:

Three step statutory disciplinary, dismissal and grievance procedures which must be followed in most cases.
Failure to follow the statutory procedures by the employer prior to dismissal will render that dismissal automatically unfair.
Employers will pay a potential increase in compensation of between 10-50% if the procedures are not followed by the employer.
An employee may be prevented from presenting some types of claim in the employment tribunal if they have not followed the grievance procedure first.

There are two sets of procedures: standard, and modified. It is envisaged that the standard procedure will be used in all but the most exceptional circumstances. These procedures apply in a wide range of circumstances which are not limited to issues relating to the capability or conduct of the employee but, for example, to dismissals which occur on the expiry of a fixed-term contract and in a smaller scale redundancies.

There are some exemptions to the statutory procedures, for example if one party reasonably believes there is a significant threat, harassment or it is not practical to go through the procedures for reasons beyond their control, or if there are issues of national security.

The Acas Code of Practice Disciplinary and Grievance Procedures¹ provides detailed guidance for employers and will continue to be crucial both before and after the proposed reforms mentioned above. CIPD endorses this Code.

CIPD members can find out more on the legal aspects of this topic from our FAQ on Discipline and grievance 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 the disciplinary system is 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 (these can stem from difficulties on the part of the organisation such as insufficient training and support, or a lack of leadership or inappropriate systems of work, as well as the individual who is struggling to fulfil their responsibilities). It is good practice and also more efficient that such issues are addressed informally, as and when they arise, by managers via discussions which clarify 'what good performance looks like', goal setting, support and timely positive feedback where appropriate. Only when these options have been exhausted and where there is no alternative should managers should enter a more formal disciplinary procedure.

Situations where an individual is unable to do their job because of ill-health 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 current statutory procedures.

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.

Record-keeping

All records should be kept meticulously, as this will be vital should a case be perused at an employment tribunal. Since the burden of proof is on the employer to show that the dismissal is not unfair or unreasonable, keeping records is vital. 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 independent advice on preparing for and conducting the interview, as well as sharing knowledge about similar cases in the organisation and relevant legislation.

The key points to consider are:

Ensure you have investigated all the facts in advance (including consulting the individual's personal file for relevant information) and plan how you will approach the meeting.
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 48 hours, so 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.
You 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 use 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.

Clearly these stages represent an increase in seriousness. With the exception of extreme examples of misconduct, it would be inappropriate to 'skip stages' in the process. Ultimately, failure to reach the organisation's standards may result in dismissal.

Any warning should also specify a review period during which the individual receives appropriate support and their performance can be monitored.

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 permitted reasons for dismissal:

misconduct
incapability
breach of statutory regulations
redundancy - see our factsheet and our FAQs on redundancy
- Go to our Redundancy factsheet
- Go to our Redundancy FAQs
retirement - but if the dismissal is handled incorrectly, employees may have a variety of claims including unfair dismissal, as the 65 year cut off point for unfair dismissals was removed with effect from 1 October 2006 with the new age discrimination legislation - see our factsheet and FAQs on age discrimination
- Go to our Age and employment factsheet
- Go to our Age discrimination and retirement FAQs
some other substantial reason.

Employers need to be sure that any decision to dismiss an employee will be seen as ‘reasonable’ by an employment tribunal. The employer must have followed the statutory procedures 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 in the Employment Law at Work area of our website.

Go to our Unfair dismissal FAQs

Grievance policy and practice

It is essential that grievances from employees are treated in the same fair manner. Failure to address grievances leaves employees with ‘residual anger’ and can lead to general unrest and disputes in the workplace.

Employees must know to whom they can turn in the event of a grievance and the support, such as counselling or sources of advice, that is available to them. 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 harassment and bullying at work.

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 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 organsiation’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 eg 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.

CIPD viewpoint

Ensuring that people are treated fairly and enabling them to work in a hostile-free environment are important factors in the creation of a productive working environment. The CIPD believes that where possible employers and employees should seek informally to resolve most matters that arise in the course of the working relationship. This approach helps minor concerns to be resolved speedily without the need to 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 of Practice¹.

Useful contacts

Acas

Department for Business, Enterprise and Regulatory Reform

References

ADVISORY CONCILIATION AND ARBITRATION SERVICE. (2004) Disciplinary and grievance procedures. Code of Practice 1. London: Acas. Available at: http://www.acas.org.uk

Discipline and grievances at work