Understand the procedures needed to deal with difficulties in the workplace and employment relationship
The most important provisions governing discipline and grievances at work are found in the Employment Act 2008 and Employment Tribunals (Constitution and Rules of Procedure) (Amendment) Regulations 2008. The Acas Code of practice on disciplinary and grievance procedures is also of significant importance.
Employers and employees should do all they can to resolve disciplinary and grievance issues themselves and if necessary should use a third party (for example, a mediator or an arbitrator) to help resolve the problem. There is a requirement for Acas early conciliation in most cases – the employment tribunal ought to be a last resort.
The legislation and case law on disciplinary and grievance procedures is not derived from the EU so these procedures are unlikely to be directly affected by Brexit. A very small number of employees who are subject to disciplinary proceedings subsequently raise arguments that the proceedings have been a breach of Article 6 (right to fair trial) of the European Convention on Human Rights (ECHR). The government has no plans to take the UK out of the ECHR, which suggests the Article 6 right will remain.
For more information on what the UK’s departure from the EU may mean for employment law, go to our Brexit hub.
Log in to view more
Log in to view more of this content. If you don't have a web account why not register to gain access to more of the CIPD's resources. Please note that some of our resources are for members only.
Writing a dismissal, disciplinary and grievance policy
The Acas code of practice on disciplinary and grievance procedures and guidelines apply to discipline and grievance situations. The regime is intended to simply reflect reasonable behaviour. Employers should, therefore, ensure that their own dismissal, disciplinary and grievance policies and procedures comply with the Acas code.
Most organisations will have existing policies which do comply with the Acas code. However, employers should review disciplinary and grievance procedures to check they do not contradict its provisions. A point for particular consideration is whether internal processes encompass a mediation stage. As always, managers should be trained in how to deal with problems at an early stage to stop them escalating.
All the following elements should be considered for inclusion in the policy:
- Provision for dealing with minor matters informally.
- Encouraging the use of mediation to resolve disputes where appropriate.
- The need for the prompt handling of issues.
- The need for clarity and unambiguousness.
- Clarification of who is covered, for example, employees, agency workers, temps etc.
- Confirmation of action that can be taken and by whom.
- Dismissal should be by senior management only.
- Clear identification of matters that amount to gross misconduct.
- Ensuring there is no dismissal for first breach of discipline, unless for a matter of gross misconduct.
- Confirming the decision, reasoning and right of appeal in writing.
Policies and procedures must be distributed to all employees and any changes must be communicated effectively.
The Acas code will be used as a benchmark by employment tribunals when considering the fairness or otherwise of an employer's procedure and actions.
Disciplinary procedures and the Acas code
The employer should follow its own comprehensive disciplinary and grievance procedures which must, at the very least, comply with the Acas code of practice on disciplinary and grievance procedures. Employment tribunals can adjust awards up or down by up to 25% to take into account non-compliance by either party (see Tribunal claims, settlement and compromise Q&As).
Acas has also published detailed non-statutory guidance on handling workplace disciplinary and grievance issues which emphasises the importance of written notification of disciplinary matters and grievances, meetings and appeals.
Many employers will have separate disciplinary procedures for dealing with conduct, and different procedures for dealing with matters of under-performance or incapability. Employers should always ensure they follow the appropriate procedure as fully as possible.
The Code does not apply to:
- dismissals because of redundancy (see Redundancy Q&As)
- the non-renewal of fixed-term contracts on their expiry.
Employers should carry out an investigation before deciding whether to conduct a disciplinary procedure.
During an investigation an employer must:
- Establish the facts of each case.
- Investigate potential disciplinary matters promptly.
- Make clear that a meeting that is merely investigatory may lead to disciplinary charges.
- Allow employees to be accompanied in certain cases (and inform employees of the separate statutory right to be accompanied in appropriate cases).
- Keep any period of suspension (which must be with pay) very brief.
- Inform the employee of the problem.
If it is decided that there is a disciplinary case to answer, the employee should be notified in writing.
If there is a case to answer, the employer must hold a meeting with the employee to discuss the problem. The employer should:
- Ensure the notification (including copies of witness statements) contains sufficient information to let the employee know what the alleged problem is and its possible consequences.
- Hold the meeting promptly while allowing the employee reasonable time to prepare their case.
- Allow the employee to set out their case, call any witnesses and answer any allegations.
- Ensure that where possible a different manager conducts the meeting to the person conducting the investigation.
- Allow the employee to be accompanied at the meeting by a trade union official or colleague when requested (this is a statutory right where the disciplinary meeting could result in a formal warning being issued or disciplinary action being taken).
- Consider arranging for someone who is not involved in the facts of the matter to take a note of the meeting and to act as an observer concerning the events of the meeting.
- If necessary, arrange for an interpreter to be present.
- Keep a careful written record including the nature of the problem, what was decided and actions taken, the reason for the actions, whether an appeal was lodged and any subsequent developments (records are confidential and should be kept in accordance with the Data Protection Act 2018 and the GDPR – see our Data protection, surveillance and privacy at work Q&As).
- Give copies of meeting records to the employee, including copies of any formal minutes.
- Consider whether any reasonable adjustments are necessary to accommodate employees, witnesses, companions etc.
It is also sensible to provide for what will happen in the event of failure to attend meetings.
After the meeting
The employer should decide on appropriate action and inform the employee. The Acas code emphasises that:
- If the employee is found guilty of misconduct or poor performance, they should be given a written warning.
- A further act of misconduct or failure to improve within a set period would normally result in a final written warning.
- If misconduct or performance is sufficiently serious, the employer may move directly to a final written warning.
- Any warning should set out the nature of the misconduct or poor performance and the change required (with a timescale).
- The employee should be told of a specified period after which the warning will be disregarded and that failure to improve, within the set period following a final warning, may result in dismissal or some other penalty such as demotion.
- A fair disciplinary process, including a right of appeal, should always be followed even in cases where gross misconduct has occurred.
- Disciplinary rules should give examples of acts which the employer regards as acts of gross misconduct.
Employees found to have committed an act (or acts) of misconduct must be given the chance to appeal.
Appeals should be heard promptly and be dealt with by a senior manager. Employees have a statutory right to be accompanied at appeal hearings, and employees should be informed in writing of the results of the appeal hearing as soon as possible and a written record should be kept.
Large organisations may wish to allow a further appeal to a higher level of management.
Grievance procedures and the Acas code
Grievances are concerns, problems or complaints that employees raise with their employers. Issues that may cause grievances include problems concerning terms and conditions of employment or working practices, health and safety, work relations, bullying and harassment, or discrimination.
Before dealing with a formal grievance:
- Management should be trained in handling grievances and be familiar with the provisions of the grievance procedure.
- The employee should let the employer know the nature of their grievance in writing.
- Employers should carry out promptly any necessary investigations to establish the facts behind the grievance.
- In minor cases, and if appropriate, employers should offer to deal with matters informally if this is acceptable to the employee.
- Consider use of external mediators to help resolve grievances (this may be offered once the meeting has taken place).
- If a formal meeting is to take place, employers should allow employees to be accompanied (and inform employees of this, as it is separate statutory right).
- Where the grievance is against an employee’s line manager, the employee should be able to approach another manager or the HR department.
- Employers should consider arranging for someone who is not involved to take a note of the meeting and to act as an observer.
- Organisations should arrange for an interpreter if need be.
- Meeting organisers should consider whether any reasonable adjustments are necessary to accommodate employees, witnesses, companions etc.
The employer should hold a meeting with the employee to discuss the grievance, ideally within five working days. As it is the employee who has raised the complaint, the meeting will not be exactly the same as a disciplinary hearing.
The employee has a right to be accompanied at the meeting. Employees should have the opportunity to put forward how they feel their grievances should be resolved. It is likely that emotions will be running high, so employers should make allowances for that and bear in mind that a willingness to listen may lead to an amicable solution.
It is possible that the grievance may be resolved during the course of the meeting but, if not, the employer should tell the employee when they might reasonably expect a response and confirm the outcome of the meeting in writing.
If the employee’s grievance is not upheld, the reasons for that should be carefully explained, as should the employee’s right to appeal.
The employer should keep a careful written record including the nature of the grievance, what was decided and actions taken, the reason for the actions, whether an appeal was lodged, and any subsequent developments. (Records are confidential and should be kept in accordance with data protection legislation - see our Data protection, surveillance and privacy at work Q&As).
A right of appeal should be offered and allowed in the same way as with a disciplinary appeal.
Copies of meeting records should be given to the employee, including copies of any formal minutes taken.
Penalties for not following the Acas code
The employment tribunal may adjust any awards made by up to 25% for unreasonable failure to comply with any provision of the Acas code of practice.
A tribunal will consider why the code wasn’t followed and the extent to which this failure was unreasonable.
If the tribunal finds the employer culpable, the award may be increased by up to 25%. If the tribunal finds the employee to be at fault, the award may be decreased by up to 25%. The size of the employer is a relevant factor in these considerations. The reason for the dismissal is also critical when considering if it was mandatory to follow the Acas code.
Case law has restricted the application of the Acas code in some situations. For example, where the issue is solely capability due to genuine ill health, then the code does not have to be followed, and the uplift does not apply (see Holmes v Qinetiq, 2016).
Employers should be careful where poor performance is involved. This must be investigated in full, with the use of a disciplinary procedure that is compliant with the Acas code until it is certain that the issue is definitely restricted to incapability due to ill health.
The EAT has confirmed that the Acas code only applies where an employer is disciplining or dismissing an employee for misconduct or poor performance. If there is ‘some other substantial reason’ for dismissal, such as a breakdown in working relationships, an employer may not be penalised for failure to follow the code (Phoenix House Ltd v Stockman, 2016).
Fairness and consistency
Employers should always consider how similar disciplinary and grievance situations have been dealt with previously and try hard to treat employees fairly and consistently.
Consistency is very important but just because an employer treats employees slightly differently, this will not automatically mean any subsequent dismissal is unfair. The allegedly similar situations must be truly similar for inconsistent treatment alone to make a dismissal unfair.
The following points are helpful:
- Employers must not indulge in favouritism or partiality when disciplining employees or addressing employees’ grievances.
- A disparity of treatment will be relevant if one employee has been led by an employer to believe that certain categories of conduct will not lead to dismissal because another employee has not been disciplined for their wrongdoing.
- Exactly parallel circumstances, where one employee has been dismissed and another has not, may mean the dismissed employee can challenge the reasonableness of the dismissal.
- An employer could be acting reasonably by treating Employee A and Employee B differently if there are mitigating circumstances, or if one employee has been more apologetic and convincing that the behaviour will not be repeated.
- If the employer has been accepted particular behaviour in the past, but has made it clear that the behaviour will be unacceptable in the future, then a dismissal may still be fair even if there is apparent inconsistency.
As always, the fairness of a dismissal depends upon whether the employer has acted within the range of reasonable responses. Any perceived or actual inconsistency is just one factor in assessment of the employer’s behaviour.
Case law shows that inconsistent treatment for gross misconduct is not always an unfair dismissal.
In one case, Kay v Cheadle Royal Healthcare Ltd t/a Affinity Healthcare (2012), the claimant was a deputy ward nurse manager in a ward for patients with mental health problems. A doctor made a formal complaint about bullying by the nurse manager. The employer investigated and found that the nurse manager had engaged in bullying behaviour along with another colleague. The nurse manager was dismissed following disciplinary proceedings. However, no action was brought against her colleague. The Employment Appeal Tribunal found that the dismissal was fair. The colleague was far less to blame than the nurse manager and, therefore, disparity in dismissing one and not the other could be justified. The issue is ‘was it reasonable to dismiss the employee concerned’ and tribunals will treat arguments based on disparity of treatment with care.
Notifying the employee
Employers should always include a detailed and accurate description of the allegations in the letter inviting the employee to a disciplinary meeting (or in grievance cases, details of their response to the employee).
Employers should enclose with that letter as much supporting detail as possible, for example statements of any witnesses (which may be dealt with anonymously in appropriate cases).
Other information which the employer should consider disclosing to the employee may include emails and letters. The evidence an employer will often ultimately rely upon is the verbal account given by other employees, summarised in the form of a witness statement. The law relating to 'evidence' is complex and the nature of evidence is often misunderstood by employees.
Evidence can include, for example:
- evidence in documentary form
- verbal explanations given by witnesses in a tribunal or court
- other evidence such as information on the hard drive of a computer, photographs, CCTV footage or a sound recording.
It is not necessary to enclose all the information or evidence the employer has. However, to ensure that any resulting dismissal is perceived to be fair, it is crucial to disclose to the employee as much material as possible in advance of the hearing. This should include copies of any documents, witness statements or other evidence the employer intends to rely on.
The Acas code on disciplinary and grievance procedures confirms that the notification to the employee before any meeting should contain sufficient information about the alleged misconduct or poor performance and the consequences to enable the employee to prepare to answer the case at a disciplinary meeting. It would normally be appropriate to provide copies of any written evidence, which may include any witness statements, with the notification. The notification should also give details of the time and venue for the disciplinary meeting and advise the employee of their right to be accompanied at the meeting.
Supply of information
Information supplied to the employee prior to a disciplinary meeting should be as accurate and honest as possible. In one case, Celebi v Scolarest Compass Group UK and Ireland Ltd (2010), the employer referred to a 'loss of £3,000'. Despite this euphemism, the employee knew she was actually being accused of theft. Following an internal disciplinary hearing, she was dismissed for incorrect reporting of stock figures, failure to follow financial procedures and discrepancies in banking.
The employee initially unsuccessfully claimed that her dismissal was unfair because the accusation of theft had not been put to her. However, she won on appeal, as the EAT held that the lack of precision in the charge meant the dismissal was unfair (although compensation was reduced for contributory fault).
A common-sense approach should always be taken. It is acceptable for additional information explaining the basis of the allegation to follow in verbal or written form after the initial letter, but before the disciplinary meeting, although this is not ideal (YMCA Training v Stewart, 2007).
The employer should supply enough information so that the employee knows what the allegations against them are. In one case, an employee was dismissed for breaching the employer’s alcohol policy because he had consumed alcohol before using a company van for personal use. The letter sent to the employee ambiguously referred to conduct which failed to ensure the health and safety of oneself and others. This was insufficient (Draper v Mears Ltd, 2006).
Witnesses and witness statements
There are three distinct categories of persons who may be present at the disciplinary or grievance meeting:
- There will often be a witness (for example, an employee who witnessed a fight between other employees, or who saw another employee being bullied.). The witnesses may have information which supports the employer’s version of events or the employee’s version.
- There may be a minute taker (another employee, usually from the HR department), invited by the employer to take a careful note of the matters discussed. This person should not be a witness to any of the events giving rise to the hearing.
- There may also be a companion invited by the employee.
The role of witnesses should not be confused with that of the companion or the impartial note taker. The companion is there to support the employee, whereas witnesses have seen or heard something relevant to the dispute. The three roles are all quite distinct.
As well as giving the employee copies of witness statements before the meeting, there should be an opportunity for both parties to call witnesses in person. The Acas code encourages this.
In practice, many meetings will proceed without witnesses, either because it is not necessary or appropriate, or because witnesses will be reluctant to get involved. Witnesses should not be pressured or intimidated in any way.
If witnesses do attend, the employer and employee must be allowed to question them about the information they have provided. Different witnesses may have different versions of what happened and the employer must decide which witness is to be believed. (Otherwise, there is a risk that the meeting starts to seem more like a tribunal hearing, which will increase the length and acrimonious nature of the dispute.)
In some cases, witness evidence may be considered anonymously.
During the meeting stages of the disciplinary grievance and dismissal procedures, all employees and workers have a right to be accompanied by a trade union representative or a colleague of their choice.
The right to be accompanied applies to meetings where a formal warning may be issued, or some other disciplinary action taken (such as suspension without pay or dismissal).
The right to be accompanied does not apply to informal discussions or investigatory meetings, although an employer may choose to grant an employee's request to be accompanied at any meeting.
If the companion is a colleague, the employer must give that person time off work to attend the hearing.
Role of a companion
Acas reinforces the fact that the employer must mention the right to be accompanied in the written communication prior to the meeting being held and a good practice approach would allow the companion to participate as fully as possible in the hearing, including asking witnesses questions. However, the law states that the employer must permit the companion to do any or all of the following:
- address the hearing
- put or sum up the employee's case
- respond on the employee's behalf to any view expressed at the hearing
- confer with the employee during the hearing.
The employer does not have to allow the companion to answer questions on behalf of the employee.
If it is not reasonably practicable for the companion to attend a meeting, then the employer should re-schedule it. The employee must propose an alternative date within five days and, if acceptable, the employer must then invite all parties to attend at this new time.
Failure to allow a companion
The right to be accompanied arises under the Employment Rights Act 1999 and therefore is a separate statutory right. Where an employer fails (or threatens to fail) to comply with this right, the worker can bring a claim seeking compensation of up to two weeks’ pay.
Despite the revision to the Acas code making it clear that employers must allow a free choice of companion, some employers may still decide to refuse to allow a companion who is an employee who has caused problems for them in the past.
In one case, Gnahoua v Abellio Ltd (2017), an employee subject to disciplinary proceedings asked to be accompanied by one of two union officials who had previously been found guilty of dishonesty and threatening behaviour towards staff. The employer said the employee could be represented by any other member of the same union, but the employee ultimately attended the hearing alone.
The tribunal found that the employee had been denied his absolute right to be accompanied at a disciplinary hearing by a chosen companion but only awarded compensation of £2. The employer had breached the right to be accompanied but the employee suffered no loss or detriment as the disciplinary hearing was thorough and considerate. The employer only interfered with the choice of companion on strong grounds. If employers veto an employee’s chosen companion with no good reason, the compensation would be higher.
Failing to attend a meeting
The guidance accompanying the Acas code recognises that there may be occasions when an employee is unable or unwilling to attend a disciplinary or grievance meeting. This may be for genuine illness or because the employee wishes to avoid the meeting due to anxiety concerning the issues to be discussed. Employers should obviously make at least one or two attempts to reschedule meetings.
The whole tenor of the Acas code concerns reasonable behaviour. Employers need to consider all the facts, the reason for the absence and decide how to proceed. It is helpful if the organisation has its own disciplinary and grievance policy which addresses the failure to attend meetings.
Where there has been a failure to attend a meeting, Acas recommends taking into account:
- The seriousness of the disciplinary issue under consideration.
- The employee’s disciplinary record (including current warnings).
- The employee’s general work record.
- Position and length of service (although sensible employers will not treat employees differently on grounds of length of service to avoid age discrimination claims).
- Medical opinion on fitness to attend the meeting.
- Treatment of similar cases in the past.
After repeated failures to attend meetings, employers should inform the employee that there is no alternative but to make a decision on the evidence available in their absence. Employers should keep a careful record of the employee’s failure to attend the meetings and the attempts to reconvene them.
Employees who do not follow the code may see their compensation awarded by a tribunal reduced by up to 25%.
Raising a grievance during disciplinary proceedings
Where an employee raises a grievance during disciplinary proceedings, the procedure may be temporarily suspended in order to deal with the grievance. There is no absolute obligation on employers to suspend the disciplinary procedure - employers can exercise their discretion.
There are three main potential scenarios:
- The grievance relates to the subject matter of the ongoing disciplinary proceedings: In this situation the grievance and disciplinary issues are related. It may therefore be appropriate to deal with both matters together. Subject to the employee’s views, the matter could be raised within the framework of the disciplinary investigation. If so, there should be separate findings on both the grievance and the disciplinary matters.
- The grievance relates to a perceived bias held by the manager conducting the disciplinary meeting or to the procedure used during the disciplinary process: if so, the employer should consider whether it is safer to suspend the disciplinary procedure for a short period to deal with the grievance separately. This will minimise allegations that the process was unfair.
- The grievance does not relate to the investigation or disciplinary process: In this situation it may be easier for the grievance process to run in parallel to the disciplinary process. The grievance procedure should be followed and dealt with by a manager who is not involved with the disciplinary procedures.
Employers should always check whether their own grievance and disciplinary procedures cover this issue as many policies and procedures do.
In summary, while it is often a good idea to put a disciplinary process on hold while the employee's grievance is dealt with, this is not compulsory.
In one case law example, Jinadu v Docklands Buses (2015), a bus driver was subject to disciplinary proceedings for poor driving. Despite grievances raised about some of the managers involved, the employer continued the disciplinary proceedings against the driver and ultimately dismissed her. In the EAT, the driver argued (among other things) that the dismissal was unfair because the disciplinary procedure should have been put on hold until the grievances had been addressed. The EAT said that a dismissal will not always be unfair where the employer fails to postpone disciplinary proceedings after a grievance has been raised.
However, each case depends on its own facts, the grievance raised and the disciplinary proceedings in question. A safer strategy may often be to deal with the grievance first.
Making a disciplinary decision
Deciding who should make a disciplinary decision on behalf of the employer can sometimes be a difficult issue. The short answer is that disciplinary decisions should be made by the person whom the employer has held to be responsible for making decisions in the context in which the disciplinary issue arose.
Usually there will be a disciplinary, grievance or dismissal policy which specifies the manager with authority to hear the case. Any decisions to suspend or dismiss must be taken by that specified manager. The Acas code of practice on disciplinary and grievance procedures should also be followed.
If the manager specified is involved in the issue which caused the problem, another more senior manager may be chosen by the employer.
In order to implement a fair dismissal for misconduct, the employer must:
- have a genuine belief based on reasonable grounds that the employee committed the misconduct
- carry out as much investigation as was reasonable in the circumstances.
Managers carrying out a disciplinary investigation will often ask for help from HR. However, the HR team’s role is to be consulted and to advise on any suspensions, investigations and the formal procedure. HR should not influence the final decision. An employee has the right to put their case to the manager making the disciplinary decision without the negative influence of others.
Case law has demonstrated how this can work in practice. In West London Mental Health Trust v Chhabra (2014), the Supreme Court said an investigator may seek advice from HR on questions of procedure and so on. HR may also give assistance to the investigator to ensure the report is clear and that all matters have been addressed. However, alterations should not be made to the extent that the report is no longer the product of the investigating manager.
In Ramphal v Department for Transport(2015) it appears that the HR department went too far. Following the involvement of the HR department in a disciplinary procedure that would have resulted in a final written warning, the outcome of that procedure changed to dismissal for gross misconduct.
The employee’s unfair dismissal claim failed in an employment tribunal, but this was overturned on appeal. The EAT concluded that HR had gone beyond advising on issues of procedure and appropriate sanctions which was the proper extent of its involvement.
Ideally HR advice should be limited to questions of law, procedure and process. The actual findings on culpability and, importantly, the sanction should be decided by the manager with authority to hear the case.
Emails and other documents which might suggest improper influence will be disclosable if there is a tribunal claim (or a data subject access request) by the employee. By contrast, if legal advisers assist the manager with the disciplinary matter, then those communications are likely to attract professional or litigation privilege and the employer will not have to disclose those to the employee in the same way that HR communications may have to be revealed.
HR should be clear in emails and meetings that they will give advice on procedure and not their opinion on whether an employee is guilty. If HR give limited advice on the appropriate sanction, this should be to ensure consistency with how other employees have been treated for similar offences.
Any appeal should be conducted by a different manager who is senior to the manager who conducted the first disciplinary hearing (for example, a director or group manager). This may not be possible in smaller workplaces. Whoever hears the appeal should consider it as impartially as possible.
Summary dismissal for gross misconduct
It is a common misconception that an employer can simply dismiss an employee for gross misconduct. In fact, it is almost always unfair to dismiss an employee instantly without first going through some form of procedure – whatever the circumstances.
This is conduct so serious it breaks the contract between employer and employee, so justifying summary dismissal. Summary dismissal means dismissing the employee without notice or a payment in lieu.
What an organisation sees as gross misconduct should be clear from its disciplinary procedures and written contracts. Typical examples include such things as theft or fraud, physical violence, gross negligence, incapacity due to alcohol or illegal drugs, and serious disobedience.
An employer must still follow a fair procedure as for any disciplinary matter. Failing to do so is highly likely to be considered unfair at an employment tribunal.
In cases of very serious misconduct, a short period of suspension on full pay may be appropriate while the investigation takes place.
The Acas code provides guidance for cases of gross misconduct.
After the disciplinary process has been completed, but before deciding to dismiss the employee, employers should consider:
- Was this a first offence?
- How significant is the rule that has been breached, and how was it communicated to employees?
- Has there been a reasonable investigation?
- Did the company follow a fair procedure?
- Was the employee given sufficient details of the allegations against them?
- Was the employee given adequate opportunity to respond to allegations?
- Were there any mitigating circumstances such as provocation or length of service?
- Have employees been treated consistently?
Procedure for a bullying or harassment complaint
The first step in dealing with bullying or harassment in the workplace is to follow the organisation’s grievance procedure with respect to the bullying and the organisation’s disciplinary process with respect to the alleged perpetrator. A well-drafted policy will always include informal stages which should be followed in appropriate cases. Some organisations have an express policy dealing with bullying which should correspond with the stages in the disciplinary and grievance process. The following additional points should be emphasised:
- All employees and managers should be fully aware of the provisions of the policy and trained in its implementation.
- The procedures should be followed consistently for all such allegations.
- The policy should also incorporate procedures which correspond with the equal opportunities policy so that racial, sexual harassment etc can be identified and dealt with in a sensitive way.
- The policy should state that harassment and bullying is not, and will not, be tolerated within the organisation and define what constitutes bullying and harassment.
The organisation’s grievance procedure should be followed, and all such procedures should provide for the possibility that a line manager may be the source of the grievance and therefore nominate an alternative senior member of management to hear the grievance.
The following steps will be essential.
There should be a thorough and impartial Investigation into any allegation of bullying, which should be carried out with care and sensitivity.
The employer must protect the rights of both the alleged harasser and the person making the complaint and, therefore, confidentiality is crucial.
Referring the alleged victim to a confidential counselling service, as well as dealing with the grievance, will help the employer’s position. The counsellor should have no direct role in the grievance procedure.
The investigation may begin with a thorough confidential interview with the complainant to ascertain:
- Who was involved?
- Were there witnesses?
- When and where did the incident occur?
An indication of what the employee wishes the outcome to be, for example, disciplining the person concerned, reallocation of duties, reorganisation of team members, relocation etc.
Moving the employee will only be appropriate where the complainant asks for that rather than continuing to work with the alleged bully.
The employer will also need to:
- Explain the procedure in full to the complainant and follow that procedure to the letter.
- Prepare written statements from all witnesses in the investigation.
- Interview the alleged harasser confidentially and keep a record of that.
- Advise the alleged harasser of the allegations against them and the disciplinary procedure, if necessary, listening to their version of events, and allowing them to be accompanied, if required.
A copy of the complainant's written statement may be given to the alleged harasser who should be afforded an opportunity to reply to the allegations.
Following the initial interviews (and depending on the strength of evidence), if the complaint is valid the employer should take prompt action to stop the bullying.
Action taken by the employer may include:
- Suspension on full pay and/or invoking the full disciplinary procedure which may lead to dismissal in serious cases.
- A verbal or written warning may be appropriate in minor isolated cases.
- Monitoring the on-going relationship between both employees after the incident.
If the employer does not know who to believe and there is a total conflict of evidence, a very detailed investigation should be undertaken. The senior manager handling the grievance should talk to all witnesses to ascertain whether the alleged incident occurred. The employer only needs a reasonable belief based on a thorough investigation to validate its subsequent actions. It does not matter if the employer is subsequently proved to be wrong provided it had a genuine belief that the incidents occurred at the time it takes appropriate action.
Can a defective disciplinary process be rectified on appeal?
Employees must be treated fairly throughout any appeal process, which must follow both any internal disciplinary policy and the Acas code of practice on disciplinary and grievance procedures.
Organisations should not rely on an appeal to correct earlier failings in the disciplinary process, although a fair appeal may help employers avoid findings of unfair dismissal.
Every point of appeal must be addressed and comprehensively responded to in the appeal and in the appeal outcome letter.
For example, in Khan v Stripestar Ltd (2015), Khan was dismissed following a six-minute disciplinary hearing. He appealed, and the appeal manager investigated thoroughly and interviewed witnesses but confirmed the dismissal. Khan’s unfair dismissal claim failed. The EAT said a disciplinary process can be fair overall where the appeal process is thorough and reasonable.
A successful appeal automatically revives employment and employers should not communicate an employee’s departure too early in case the decision to dismiss is overturned on appeal. If an employer fails to comprehensively deal with some of the allegations in disciplinary proceedings, this failure may be a breach of contract (see Patel v Folkestone Nursing Home Ltd, 2018).
Generally, the employer should not increase the sanction from the previous hearing unless this is expressly provided for in the discipline and grievance policy. An example would be increasing the sanction from a warning to a dismissal (see McMillan v Airedale NHS Foundation Trust, 2014).
Does the ACAS code apply to ill health dismissals?
The Acas code on disciplinary and grievance procedures does not usually apply to ill health dismissals, but only to situations where an employee’s alleged act or omissions involves misconduct or poor performance requiring correction or punishment (see Holmes v Qinetiq Ltd, 2016).
An employer should have alternative procedures for dealing with ill health, unless the ill health leads to a failure to comply with a sickness absence procedure, in which case disciplinary procedures may be necessary (see Absence procedures Q&As).
The Acas code also does not apply to redundancy dismissals or the non-renewal of fixed term contracts on their expiry.
If employers are in doubt whether the Acas code applies, then it is probably safer and good practice to follow it anyway, because employment tribunals can adjust any award made by up to 25% if there has been a failure to comply with the code when it is applicable.
Must a disciplinary procedure be completed before issuing a warning or a suspension?
Whether a disciplinary procedure has to be followed in full before issuing warnings to an employee or suspending them on full pay will depend upon what the employer has included in its policy.
Most disciplinary procedures will allow an employer to give verbal, written and final written warnings, which will have a defined lifespan.
Before issuing oral or written warnings or suspending an employee on full pay, employers must comply with both the organisation’s own procedure and the Acas code of practice.
The Acas code envisages that before giving a formal warning, employees will have been informed of the allegations in writing and have had the opportunity to state their case at a disciplinary meeting, with the right to appeal against any disciplinary penalty.
Employees and workers have a statutory right to be accompanied where a disciplinary meeting could result in a formal warning or some other disciplinary action.
Can employers take expired warnings into account when dismissing an employee?
Depending on the outcome of the disciplinary proceedings, an employee may be given a written warning or performance note. These will usually be disregarded after a specified number of months of satisfactory service.
If a disciplinary policy has set time periods after which warnings will expire, these should normally be complied with. Employers must not use expired warnings to dismiss employees for something which on its own would not justify dismissal.
The Acas code of practice on disciplinary and grievance procedures states warnings should be disregarded for disciplinary purposes after a specified period. It suggests 12 months for a final written warning and six months for other warnings.
Acas guidance says prior disciplinary records can influence how long a warning should last and, in exceptional circumstances, misconduct may be so serious that it cannot be ignored for future disciplinary purposes.
Employers do not have to remove expired warnings from an employee’s file, unless their disciplinary policy requires this. In exceptional circumstances, a dismissal which takes into account expired warnings may be fair.
In Airbus UK Ltd v Webb (2008), an employee with an expired final written warning was found watching television with four colleagues when he should have been working. All employees were found to have committed gross misconduct but, taking into account the expired warning, only the claimant was dismissed. The court held that the expired warning could be taken into account when dismissing the employee. Not reducing the sanction to the final written warning given to the four colleagues with clean disciplinary records was fair.
In Stratford v Auto Trail VR Ltd (2016), an employer relied on an expired warning when deciding to dismiss. The employee’s last warning (out of the 17 items on his disciplinary record) had expired by the time he was caught defying a mobile phone ban on the shop floor, which led to his dismissal. At the disciplinary hearing, he was given a final written warning as the phone incident was not gross misconduct. However, the employer did not believe his behaviour would ever change and decided to terminate his employment immediately. The employee claimed unfair dismissal.
The EAT confirmed that once a warning has expired, the slate should normally be wiped clean, but employers may rely on expired warnings in the right circumstances. Here the employee’s disciplinary record, and the belief that he would not improve, justified the employer’s decision to dismiss. If there had only been one previous expired disciplinary warning, the decision may have been different.
The last case confirmed a shift in the law. Employers should not interpret this decision as giving them permission to take expired disciplinary warnings into account in all cases. Usually it will be unfair for an employer to have regard to an expired warning when deciding whether to dismiss. In rare cases, relying on an expired warning may be fair; it remains good practice to make sure a dismissal can be justified without the need to refer to an expired warning.
The Information Commissioner recommends employers have clear procedures on handling expired warnings and how long they are retained (see our Factsheet on Data protection and GDPR in the workplace). Disciplinary policies should, therefore, specify if an expired warning may be relied on, and how long warnings will be retained (often 6 or 12 months). Some disciplinary policies may allow for longer set periods for misconduct verging on gross misconduct, or where there has been a history of warnings.
Which communications should be treated as grievances?
Any communication from an employee to their employer which contains a problem or complaint should potentially be treated as a grievance. If an employer is in doubt about whether the employee is raising a formal grievance, the employer could always ask them directly.
The key points which employers should note concerning grievances are:
- Grievances can be contained in a wide variety of written communications, for example, a letter making a general moan or grumble, emails, resignation letters, in a letter from the employee’s solicitor (even a letter threatening proceedings) or a flexible working request.
- If a grievance does not mention its legal basis, the employer may be able to defend a subsequent allegation by the employee that the grievance was not properly dealt with.
- Employees do not need to set out a detailed grievance statement but there must be sufficient information for the employer to appreciate that a grievance has been raised.
- Employers should scrutinise an employee’s ET1 tribunal claim form to determine the nature of the complaint and compare it to the grievance.
Case law has established that a written request for flexible working under the Employment Rights Act 1996 can count as a grievance letter, even if there is no specific reference to a grievance as such.
The EAT has found that a resignation letter and a solicitor’s letter were both sufficient to constitute a grievance letter, even though the solicitor’s letter implied that a grievance would follow in due course. The EAT has also held that a resignation letter is sufficient to initiate the statutory grievance process provided the grievance is set out in writing.
Can employers investigate bullying and harassment using anonymous evidence?
An employer should deal with a bullying complaint by following the organisation’s grievance process with respect to the bullying and the disciplinary and dismissal process with respect to the employee who is alleged to be the perpetrator.
Evidence in relation to the disciplinary process is always important. In considering whether witness statements should be anonymous, consideration needs to be given to balancing the interests of the parties, the need to protect informants and the right of the employee to a fair hearing.
The following points can be used as guidance:
- Statements should be in writing (with names removed to preserve anonymity) and made available to the employee or their representative.
- Statements need to be accurate with regard to date, time and place of each incident, the employee’s observations and any other relevant details.
- Is there any corroborative evidence?
- Has the informant any reason to fabricate evidence, for example, because they were in a previous relationship with either the alleged harasser or the harassed?
- Is the informant's fear genuine and sufficient for the employer not to require their further involvement in the disciplinary process?
- If at any stage in the disciplinary process the employee raises issues to be put to the informant, the employer should consider an adjournment so the relevant question can be put.
- In cases involving informants, careful notes must be taken of the disciplinary hearing.
Can action be taken against employees when it’s not clear who was at fault?
Where two or more employees are suspected of misconduct and the employer, despite investigation, cannot discover who is to blame, it may be fair to dismiss several employees in relation to the same incident on the grounds of a reasonable suspicion (Monie v Coral Racing Ltd, 1981).
The EAT has set out five principles for employers faced with the prospect of multiple dismissals (Parr v Whitbread plc t/a Threshers Wine Merchants, 1990):
- Would the conduct justify dismissal if it was committed by an individual?
- Has the employer conducted a thorough investigation which indicates that more than one person could be responsible?
- Was it reasonable to identify this group of employees as capable of committing the conduct complained of?
- Could each employee in isolation have committed the act?
- Given the evidence, can the employer identify the culprit?
Can an employer take off-duty misconduct into account?
Conduct that occurs outside of the workplace can justify a dismissal. However, the conduct must be of relevant to the job in question.
Issues employers need to consider when contemplating dismissal in such circumstances are:
- Is there an express term in the contract or the disciplinary policy governing misconduct outside the workplace?
- What is the previous disciplinary record and length of service of the employee?
- Does the nature of the misconduct have a bearing on the role performed by the employee (for example, a care assistant in a residential home facing prosecution for assault)?
- Will there be an effect on the reputation of the company given the nature of the business (press coverage may be relevant)?
- Does the incident involve or affect other employees?
In one case, an employer fairly dismissed an employee for a fight at the end of a Christmas party (Gimson v Display By Design Ltd, 2012). Employees can be disciplined and dismissed for misconduct outside the workplace, provided that the incident is sufficiently closely connected to work to have had an impact on the work environment.
An employer must conduct its own full and thorough investigation, which may include suspension, in relation to an employee facing criminal charges. It is not necessary to wait until the outcome of the criminal proceedings is known before taking action. It is extremely important that an employer carries out its own investigation. Before dismissing, employers should consider the factors listed above. Other relevant issues will include the seniority of the employee, any effect the conviction has on their ability to do their job and the nature of the employer’s business.
For example, in Post Office v Liddiard (2001), a tribunal found the employer had unfairly dismissed a worker imprisoned for violence at a football match which received significant media coverage. The Court of Appeal decided the tribunal had not considered whether the employer had acted within the range of reasonable responses by treating the employee’s bringing the organisation into disrepute as a sufficient reason for the dismissal.
Can an employee choose any companion for a disciplinary hearing?
All workers can choose a trade union representative or a colleague of their choice at disciplinary, grievance or dismissal hearing, but this does not extend to family members or legal representation. A significant number of claimants (relying either on human rights or contractual terms) have tried to assert a right to legal representation at disciplinary hearings, especially where the worker’s ability to practise their chosen profession is at stake.
An employer may voluntarily allow the employee to choose a family member as a companion, although it doesn’t have to agree to this. There is no statutory right to insist on family members being present if the employer does not agree.
Unless the employer agrees, an employee is not usually permitted to take a solicitor or other legal representative along to such meetings. An employer can therefore insist upon the basic legal position and say only a trade union representative or a colleague is permitted. However, the employer may voluntarily allow the employee to be accompanied by a lawyer if the employee wishes to instruct one.
Some employees who have been refused their request to have a lawyer present have alleged that this is a breach of Article 6 of the European Convention on Human Rights (right to fair trial). Case law has confirmed that while this is generally not a breach of Article 6, in certain limited cases the employee may be entitled to legal representation: for example, where the disciplinary meeting could lead to serious consequences, such as the employee no longer being able to work in their chosen profession (R (on the application of Puri) v Bradford Teaching Hospitals NHS Foundation Trust, 2011).
Examples of cases concerning requests to be accompanied by a lawyer at a disciplinary hearing include a teaching assistant at risk of being added to a register of those unsuitable to work with children. The Supreme Court found he was not entitled to legal representation at a disciplinary hearing leading to dismissal, and his human rights were not breached, because the decision to ban him from working with children was taken by another authority and was separate from the decision to dismiss him (Governors of X School v R on the application of G, 2011).
In another case, a doctor faced being barred from employment in the NHS. He was entitled to be represented at the disciplinary hearing by a qualified lawyer under the terms of his professional indemnity insurance. A key factor in the case was that NHS doctors are contractually entitled to be represented by a qualified lawyer at disciplinary hearings started on the grounds of capability or conduct (Kulkarni v Milton Keynes Hospital NHS Trust and Secretary of State for Health, 2009).
Allowing an employee to be accompanied by a lawyer is complex and will depend on each individual set of facts. In making their decision, employers should consider the seriousness of the allegations and the consequences for the employee and should also take into account any express contractual entitlement to legal representation at disciplinary hearings. There is also the possibility of a breach of the implied term of trust and confidence between employer and employee.
‘Reasonable’ choice of companion
Workers have an absolute right to choose their own companion provided they fall into one of the permitted categories (trade union official, certified trade union representative or a fellow worker). The employer cannot insist on a work colleague it prefers (see Toal v GB Oils Ltd, 2013).
Acas states that employers “must agree to a worker's request to be accompanied by any companion from one of these categories. Workers may also alter their choice of companion if they wish. As a matter of good practice, in making their choice workers should bear in mind the practicalities of the arrangements. For instance, a worker may choose to be accompanied by a companion who is suitable, willing and available on site rather than someone from a geographically remote location.”
Implied term of trust and confidence
Case law confirms that refusing a choice of a companion for a disciplinary investigation can be a breach of the implied term of trust and confidence. In Stevens v University of Birmingham (2015), an academic undergoing a disciplinary investigation had been assisted by a representative of his professional medical indemnity association. The High Court held that the university breached the implied term of trust and confidence when it refused to allow the representative to attend, due to the:
- inequality in the circumstances
- seriousness of the allegations
- fact that the insurer served a similar function to a union
- the representative having been permitted to attend up to that point.
Can the employer or employee record disciplinary or grievance meetings?
With advances in technology, including smartphones, recording disciplinary and grievance meetings happens more frequently. The legal position varies depending upon whether the recording is open or secret.
An employer and employee may agree that a sound recording is to take place, or the employer’s own disciplinary and grievance procedure may contain the right to record hearings. For example, it may be appropriate for an employer to agree to a recording where the employee is disabled and requests such a recording as a reasonable adjustment to the usual procedure.
If employers decide to record the proceedings (with the employee’s consent) then typed transcripts are often provided to all parties. The Acas guide on discipline and grievance confirms that copies of meeting records should be given to the employee,.
Alternatively, an impartial employee may attend and take notes on a confidential basis. A full copy of those notes should then be provided to the employee after the hearing and an agreed record produced and signed by both parties. The employee and their companion are also free to take notes during the hearing.
If the employer does not want recordings of meetings, this should be made clear in the disciplinary and grievance procedures. At the start of meetings, it is common to request that mobile phones, or any other portable devices, are switched off and that employees should remove all their belongings from the hearing room during an adjournment.
Covert recordings of meetings with an employer used to be inadmissible as evidence in any later tribunal proceedings. If an employer covertly records a meeting with an employee, the evidence gathered in this way is still unlikely to be permitted.
If the employee makes a recording the general rule established by case law now is that:
- the recording of a meeting where the employee was present may be admissible at a tribunal if the tribunal believes it is relevant
- any secret recording of private discussions of an employer’s disciplinary panel when the employee is no longer in the room will not be admissible.
Is an employee dismissed for gross misconduct likely to succeed in an unfair dismissal claim?
If an employer dismisses an employee for an act of gross misconduct and the employee subsequently proves their innocence, the employee will not automatically succeed in an unfair dismissal claim. This is because an organisation only needs reasonable grounds for its belief that there was gross misconduct, based upon a reasonable investigation. If the employer reasonably believed the conduct occurred and followed the Acas code of practice on disciplinary and grievance procedures then the dismissal will be fair, even if the employee subsequently proves they did not do whatever the employer thought they did.
An employer will be able to defend a non-automatic unfair dismissal claim (see our Unfair dismissal Q&As) if it can show it genuinely believed that the employee was guilty of misconduct. The employer should have reasonable grounds for its belief based on a reasonable investigation.
This key test was established in British Home Stores Ltd v Burchell (1978) and is valuable guidance to employers when considering the reason for a misconduct dismissal. Once the reason has been established, a tribunal must then turn its attention to considering whether the employer acted reasonably in treating this as sufficient reason to dismiss in all the circumstances of the case. A tribunal cannot substitute its own view – in other words, what it would have done had it been the employer; it must only consider the issue of whether the employer acted reasonably.
Whether a dismissal is fair or unfair depends on the facts as they are known to the person making the dismissal decision. Even if other employees and the employee’s line manager know some key facts about which the decision maker is genuinely ignorant, the dismissal may still be fair (Orr v Milton Keynes Council, 2011). The fairness of a dismissal depends on whether it was reasonable based on the facts known to the decision maker and not the information known to others in the organisation. Obviously, if there was an error in the disciplinary procedure which meant these facts did not come to light, then the dismissal may still be unfair.
In a case of suspected misconduct, an employer does not have to investigate every line of defence put forward by an employee. In Shrestha v Genesis Housing Association Ltd (2015), a housing support worker had to travel by car to see clients at their homes. His expenses claims seemed excessive when compared with AA-suggested mileage rates. The employee was dismissed for gross misconduct on the basis that he had falsified his mileage claims.
The key issue was whether the employer should have analysed every single journey made by the employee and the purported reasons for the additional mileage. The EAT and Court of Appeal ruled that the employment tribunal was required to apply the test in Burchell, which requires an employer to carry out as much investigation into the matter as is reasonable in the circumstances. Here the employer did not have to examine each line of defence put forward by the employee, as it was simply not plausible that there was a legitimate explanation for each and every journey. An investigation should be looked at in its entirety when assessing the question of reasonableness.