Commonly asked questions on the legal issues relating to discipline and grievance procedures
Difficulties may arise at various points in the employment relationship, and disciplinary and grievance procedures are there to ensure that these challenges are dealt with fairly and consistently. For this reason, employers need procedures that support both the employer’s and employee's perspective. Employers are advised to follow the Acas Code of Practice: Disciplinary and Grievance Procedures.
This factsheet examines the two main areas where a disciplinary system may be used: capability/performance and conduct. It offers comprehensive advice for handling disciplinary interviews, providing a detailed list of key recommendations for employers as well as potential outcomes. The factsheet also looks at handling grievances informally and formally.
Managing conflict effectively is key to creating a healthy and productive working environment. Resolving disputes informally, and at an early stage where possible, will help to resolve minor concerns speedily, without the need for formal action that can be protracted and stressful for all concerned.
Disciplinary and grievance procedures are essential when informal mechanisms are ineffective, or inappropriate given the nature of the dispute. These procedures can also help to avoid costly and time-consuming tribunal cases. We endorse the Acas Code of Practice: Disciplinary and Grievance Procedures.
It‘s important that employers have clear individual dispute resolution procedures that are communicated to all staff. The employer should ensure that line managers and any members of staff involved in managing disciplinary matters and grievances are properly trained in the organisation’s policies and procedures and know how to implement them. The employer and HR professionals have a responsibility to ensure that all disputes are handled in a fair and consistent manner across the organisation.
What are disciplinary and grievance procedures?
Disciplinary and grievance procedures provide clear structures for dealing with difficulties which may arise as part of the working relationship, from either the employer’s or employee’s perspective.
These procedures are needed to make sure every individual is treated in the same way in similar circumstances and to deal with issues fairly and reasonably. They also ensure that employers comply with current law and follow the Acas Code of Practice: Disciplinary and Grievance Procedures. Most employers will have their own procedures which comply with the Acas Code.
Disciplinary procedures are needed to:
- make employees aware of what's expected of them in terms of standards of performance or conduct (and the likely consequences of continued failure to meet these standards)
- identify obstacles to individuals achieving the standards required of them (for example training needs, or lack of clarity about job requirements, or additional support needed) and to enable employers to take appropriate remedial action
- enable employers and employees to agree suitable goals and timescales for improvement in an individual's performance or conduct
- try to resolve matters without recourse to external dispute resolution processes or an employment tribunal
- demonstrate to an employment tribunal that an appropriate process has been followed should an employee complain about the way they've been dismissed.
Grievance procedures are needed to:
- provide individuals with a course of action if they have a complaint which they’re unable to resolve through discussion with their line manager and/or another colleague if a difference has arisen
- provide points of contact and timescales to resolve issues of concern
- try to resolve matters without recourse to external dispute resolution processes or an employment tribunal.
Our survey Getting under the skin of workplace conflict: tracing the experiences of employees explores the nature of conflict and how organisations deal with it.
The legal position
The most important legislation in Great Britain governing discipline and grievances at work includes the Employment Act 2008. However, those in Northern Ireland should note that this Act which repealed the previous statutory procedures for handling discipline and grievance issues across the UK, is not applicable there.
Following the Acas Code of Practice: Disciplinary and Grievance Procedures is crucially important for employers; an employment tribunal will consider whether or not the employer and employee has followed the Code; if they haven’t, the tribunal may adjust any awards made by up to 25% for unreasonable failure to comply.
CIPD members can find out more about the Code and the law from our Discipline and grievance procedures law Q&As.
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 issues may arise because an employee doesn't have adequate training, or is just unable to perform the work to a satisfactory standard for another reason. An employer must try to identify the reason and give appropriate support, before invoking a formal 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 empathetically and offered appropriate support. However, unacceptable levels of absence could still result in the employer making use of sickness absence procedures and warnings - see more in our Absence management factsheet. The employer should be mindful in cases of absence where the individual has a disability to ensure that it is compliant with the Equality Act and the duty to make reasonable adjustments – see more in our Disability and employment factsheet.
Employee misconduct could cover a wide range of issues that vary in their level of seriousness, including:
- 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
- a criminal offence.
In all cases, an employer should follow their own procedures as well as the Acas Code.
The more serious offences may constitute gross misconduct, which could involve offences such as theft, physical violence or serious insubordination. Although the employer can dismiss an employee with immediate effect in a case of gross misconduct, it’s still important to follow a fair procedure and investigate the alleged offence. There should also be an opportunity for the employee to respond before making a decision to dismiss
Stages of the process
If disciplinary action is to be taken, it should usually have at least three main stages:
- a letter
- a meeting
- an appeal.
The employer should always carry out a full and fair investigation to determine the facts and to decide if further action is necessary. Acas has published guidance for those carrying out investigations, and recommends that an investigator should be trained for the role.
Employers should keep meticulous records of disciplinary action and communication, which will be vital should a case go to an employment tribunal. The type of records to keep include:
- minutes of all meetings
- attendance notes
- notes of telephone calls
- copies of correspondence.
Handling disciplinary interviews
The employer should train and support all line managers to ensure that they’re confident and competent to carry out disciplinary meetings. The HR department should advise them on relevant legislation and the organisation’s own policies and procedures, and how to prepare for and conduct the interview.
An employee or worker is entitled to be accompanied by a work colleague or trade union official at formal disciplinary and grievance interviews. It’s good practice for an employer to offer this at any investigatory meeting. Employers don’t usually have to allow other companions (for example family members or lawyers) but may do so if they wish.
Ensure everyone involved in conducting the disciplinary process understands the importance of following the correct procedure; even if the case against an employee seems proven, the individual may still be treated unfairly if the correct procedures aren’t followed.
Ensure all the facts are investigated, including consulting the individual’s personal file for relevant information, and plan how to approach the meeting.
Make sure the letter inviting the employee to the meeting says why they’ve been asked to attend and states that they’re entitled to have a companion present.
Give the individual reasonable notice, ideally more than 72 hours.
Before the meeting, provide appropriate statements from the individuals involved, together with any key information the employer intends to rely on.
Make sure another manager can be present 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 other individuals/witnesses.
Give the employee plenty of 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 –nd not the duration.
Make use of adjournments; always take a break to consider and obtain any additional information before reaching a decision. Adjournments can be especially useful if the interview becomes heated or if people are upset.
Communicate the decision in person if possible (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.
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.
Alternatively, the employer may decide to give the employee a warning. An organisation’s policy should outline exactly which warnings will be given, for example:
- verbal/oral warning (Acas no longer recommends this stage as part of a formal procedure but, for cases of minor misconduct, this will often be a reasonable method to prevent a problem from escalating)
- first written warning/improvement notice
- final written warning.
Employers should specify how long formal disciplinary warnings should stay on an individual’s record. Typical timescales suggested in the Acas non-statutory guidance for the types of warning are:
- first written warning – 6 months
- final written warning – 1 year.
It may be appropriate for a warning to continue to be regarded for longer, provided the timescale was specified in the organisation's disciplinary policy from the outset. The time period for warnings to remain current, and the penalties imposed, must be reasonable given the circumstances. For example, the employer must take into account the nature of the misconduct and the employee's disciplinary record, and ensure consistency with penalties imposed in similar cases.
There are currently five potentially fair reasons for dismissal – as set out in 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 before any dismissal and demonstrate fairness overall, for example by complying with internal procedures, treating employees consistently and carrying out a proper investigation.
If, despite the employer’s efforts, the individual submits a tribunal claim, both parties must attempt to resolve the dispute by early conciliation using Acas or some other means of dispute resolution. The parties could also enter into a settlement agreement. CIPD members can find out more from our unfair dismissal law Q&As and our wrongful dismissal law Q&As.
Grievance policy and practice
It’s essential that an organisation treats all employee grievances in the same fair manner and ensures that all managers are familiar with its grievance procedure.
There are a number of additional factors to bear in mind when dealing with grievances concerning harassment.
Handling grievances informally
An employer should encourage individuals to discuss day-to-day issues informally with their line manager, so that concerns can be heard and responded to as soon as possible.
Where this is unsuccessful, or circumstances make this route inappropriate, employers should consider using mediation or some other form of alternative dispute resolution such as ‘facilitated discussion’.
Our report Conflict management: a shift in direction? shows that more employers are keen to encourage earlier resolution of conflict at work and many see formal procedures as the last resort.
However, if individual disputes can’t be resolved by informal means, they should be raised formally through the grievance procedure.
Handling grievances formally
Employers should ensure that staff are aware of the formal route open to them through the grievance procedure, including:
- all stages of the Acas Code and any further elements of the organisation’s own procedures
- with whom to raise the complaint and appropriate sources of support
- timescales within which the organisation will seek to deal with the complaint
- the stages of the grievance procedure, for example how a complaint may be raised with the next level of management if a satisfactory resolution isn't reached.
An employee or worker should have 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.
Useful contacts and further reading
ACAS. (2015) Discipline and grievances at work. Rev. ed. London: Acas.
DEPARTMENT FOR BUSINESS INNOVATION AND SKILLS. (2009) Avoiding and resolving discipline and grievance issues at work. London: BIS.
GENNARD, J, JUDGE, G., BENNETT, T. and SAUNDRY, R. (2016) Managing employment relations. 6th ed. London: Chartered Institute of Personnel and Development.
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Disciplinary procedures. (2015) IDS Employment Law Brief HR. No 1031, October. pp13-19.
ELLIOTT, T. (2016) How to ... conduct a disciplinary investigation. Employers' Law. February. pp18-19..
JONES, C. and SAUNDRY, R. (2012) The practice of discipline : evaluating the roles and relationship between managers and HR professionals. Human Resource Management Journal. Vol 22, No 3, July. pp252-266.
Plan of action to deal with employee misconduct. (2013) Employers' Law. September. pp20-21.
SIMMS, J. (2017) There’s more than one way to solve a dispute. PM Daily. 25 July.
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This factsheet was last updated by Lisa Ayling, solicitor and employment law specialist, and by Rachel Suff.
Rachel Suff: Employee Relations Adviser
Rachel joined the CIPD as a policy adviser in 2014 to increase the CIPD’s public policy profile and engage with politicians, civil servants, policy-makers and commentators to champion better work and working lives. An important part of her role is to ensure that the views of the profession inform CIPD policy thinking in ER areas such as health and well-being, employee engagement and employment relations.
As well as developing policy on UK employment issues, she helps guide the CIPD’s thinking in relation to European developments affecting the world of work. Rachel is a qualified HR practitioner and researcher; her prior roles include working as a researcher/editor for XpertHR and as a senior policy adviser at Acas.
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