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.
How important is it to treat employees consistently when dealing with disciplinary and grievance matters?
Employers should always consider how previous similar disciplinary and grievance situations have been dealt with and try hard to treat employees fairly and consistently.
Consistency is very important, but just because an employer treats employees with some minor disparity, this will not automatically mean any later dismissal is unfair. The allegedly similar situations must be truly similar for inconsistent treatment alone to make the dismissal of one of the employees 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 misled by an employer to believe that certain categories of conduct will not lead to dismissal because another employee has been forgiven for their wrongdoing.
- Exactly parallel circumstances where one employee has been dismissed, and the other 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 forgiving in respect of 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.
The case Kay v Cheadle Royal Healthcare Ltd t/a Affinity Healthcare (2012) shows that inconsistent treatment for gross misconduct is not always unfair dismissal.
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 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’ - tribunals will treat arguments based on disparity of treatment with care.
What should a dismissal, disciplinary and grievance procedure policy contain?
Under the Employment Act 2008 (which does not apply to Northern Ireland), 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 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 to ensure that 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.
Elements including the following should be considered:
- 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.
- 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.
- Clearly 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.
Does a disciplinary procedure have to be followed before warning an employee or suspending them on full pay?
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 provide for 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.
Workers, of course, have the usual statutory right to be accompanied by a companion where the disciplinary meeting could result in a formal warning being issued 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.
The 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 was a factor which 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 also 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 above was an important decision as it 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.
In the Employment Practices Code of Conduct, the Information Commissioner recommends that employers have clear procedures on handling expired warnings and how long they are retained. When the General Data Protection Regulation comes into effect in May 2018 there will be fines for non-compliance. 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.
What should an employer do in a disciplinary or grievance situation?
The employer should follow its own comprehensive disciplinary and grievance procedures which must, at the very least, comply with the Acas code of practice.
The reasonable behaviour required by Acas emphasises the importance of written notification of disciplinary matters and grievances, meetings and appeals.
Employers and employees must follow the Acas code to ensure a reasonable standard of behaviour. An employment tribunal will consider the procedure that has been followed by the employer or employee in dealing with the disciplinary matter or grievance. If the Acas code has not been followed the tribunal has discretion to adjust awards up or down, up to a maximum of 25% in relation to either party.
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.
Case law, for example the Employment Appeal Tribunal case Ezsias v North Glamorgan NHS Trust (2011), suggest that in a minority of cases an employer who does not follow its conduct dismissal procedure may not necessarily have unfairly dismissed the employee if the dismissal is primarily because of a complete breakdown of the working relationship, even though it was caused by the employee’s conduct. This is because the dismissal is then due to ‘some other substantial reason,’ namely the breakdown in trust and confidence, and is not a usual ‘conduct’ dismissal.
Which communications should an employer treat as a grievance?
Any communication which contains a problem or complaint that the employees raises with their employer should potentially be treated as a grievance. If an employer is in doubt about whether the employee is raising a formal grievance, that issue could always be clarified with the employee by asking them directly.
The key points which employers should note concerning grievances arising from case law 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) and a flexible working request.
- If a grievance does not mention the legal basis of the claim at all, the employer may be able to defend a subsequent allegation that the grievance was not properly dealt with.
- Employees do not need to set out a detailed statement of grievance, but there must be sufficient for the employer to appreciate that a relevant grievance has being raised.
- Employers should scrutinise an employee’s ET1 claim form to determine the nature of the complaint and compare it to the grievance.
Case law examples
The following are examples of the numerous cases heard under the 2004 statutory dsmissal and disciplinary procedures, repealed in 2009. However, the cases still clarify whether the employee has initiated a grievance procedure:
Commotion Ltd v Rutty (2006): It was held that a written request for flexible working under the Employment Rights Act 1996 can count as a grievance letter, even though there was no specific reference to a grievance as such.
Martin v Class Security Installations Ltd(2006): The Employment Appeal Tribunal 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.
Shergold v Fieldway Medical Centre(2006): The Employment Appeal Tribunal held that a resignation letter was sufficient to initiate the statutory grievance process as long as the 'grievance' is set out in writing. The tribunal commented that it is not necessary to state that a letter is a grievance, or is an invocation of a grievance procedure. It also stated that the grievance need not be identical to subsequent proceedings, but there must be material similarity if the statutory procedures are to be complied with.
How should an employer deal with a complaint of bullying?
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 and dismissal 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 with respect to 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 the 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:
- A thorough investigation undertaken with care and sensitivity.
- Investigations into allegations of bullying should be thorough and impartial.
- The employer must protect the rights of both the alleged harasser and the person making the complaint and, therefore, confidentiality is crucial.
- Reference to a trained 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 the facts:
- Who was involved?
- Were there witnesses?
- When and where did the incident occur?
- An indication of what the employee wants to happen, 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.
- 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 harasser of the allegations against them and the disciplinary procedure if necessary, listening to their version of events, 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 (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 and dismissal procedure which may lead to dismissal in serious cases.
- A verbal or written warning may be appropriate in minor isolated cases.
- Monitor 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 in an effort to ascertain whether or not the alleged incident occurred. The employer only has to have a reasonable belief based on a thorough investigation. It does not matter if the employer is subsequently proved to be wrong as long as it had a genuine belief that the incidents occurred at the time it takes action.
Can employers investigate bullying and harassment on the basis of anonymous evidence?
An employer should deal with a complaint of bullying in the usual way 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 (these may be edited to remove names and preserve anonymity) and be made available to the employee or their representatives.
- 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 genuinely sufficient to not require them to be involved in the disciplinary process further?
- If at any stage in the disciplinary process the employee raises issues to be put to the informant then 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.
These guidelines came from Linfood Cash and Carry v Thomson (1989).
Can action be taken against several employees when it cannot be determined 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. The employees would be dismissed on a reasonable suspicion (see Monie v Coral Racing Ltd, 1981).
In Parr v Whitbread plc t/a Threshers Wine Merchants (1990), the EAT set out five principles for employers faced with the prospect of multiple dismissals:
- Would the conduct if committed by an individual justify dismissal?
- Has the employer conducted a thorough investigation, satisfying the employer that more than one person could be responsible?
- Was it reasonable to identify this particular group of employees as having been capable of committing the conduct complained of?
- Could each individual in isolation have committed the act?
- Given the evidence, can the employer identify the culprit?
How far can an employer take into account misconduct that occurs off-duty?
Conduct that occurs outside of the workplace can justify a dismissal. However, the conduct must be of particular relevance to the job in question.
Some of the 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?
- The previous disciplinary record and length of service of the employee.
- What is the nature of the misconduct and does this have a bearing on the role performed by the employee? (For example, a care assistant in a residential home of the disabled 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?
For example, in Gimson v Display By Design Ltd (2012) an employer fairly dismissed an employee for a fight at the end of a Christmas party. Employees can be disciplined and dismissed for misconduct occurring outside of the office, provided that the incident is sufficiently closely connected to work to have had an impact on the work environment.
In relation to criminal charges an employer must conduct their own full and thorough investigation which may include suspension of the employee. It is not necessary to wait before taking action until the outcome of the criminal proceedings is known. 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 business of the employer.
An example of these points was the case of The Post Office v Liddiard (2001). The tribunal had found the employer had unfairly dismissed a Post Office worker who was imprisoned for violence at the football World Cup which received significant media coverage. The Court of Appeal decided the original tribunal had not considered the issue central to the case, namely whether the Post Office had acted within the range of reasonable responses by treating the employee’s bringing the organisation into disrepute was a sufficient reason for the dismissal.
Should a disciplinary decision be made by an employee’s manager, a more senior manager or by HR?
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.
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 etc 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, and
- 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.
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.
A compliance inspector with the Department for Transport travelled a lot as part of his role. His transport and subsistence expenses claims seemed high and a manager carried out a formal investigation and disciplinary proceedings. This manager sent a first draft of his report to HR. There were some favourable comments and a proposed finding of misconduct, accompanied by a final written warning. The report was not finalised until six drafts and numerous amendments had taken place over a six-month period. The changes entailed:
- replacing the positive comments with negative ones
- changing The the level of misconduct changed to gross misconduct
- The changing the sanction changed from a final warning to summary dismissal.
The manager in question was inexperienced at conducting disciplinary hearings and it was inferred that HR seemed to think the explanations by the employee were not convincing. Following the involvement of HR, the manager’s belief changed from thinking that any excessive expenses claims and credit card misuse were not deliberate and that the employee had given plausible reasons which would have resulted in a final written warning, to a belief that the employee had misused the employer’s credit card which resulted in his dismissal for gross misconduct.
The employee claimed unfair dismissal. The Employment Appeal Tribunal (EAT) overturned an employment tribunal’s finding that the dismissal was fair and said the matter had to be reconsidered. The investigating manager’s initial recommendations were too heavily influenced by the HR department. The EAT concluded that HR had gone beyond discussing and advising on issues of procedure and law and the level of appropriate sanctions to achieve consistency which was the proper extent of HR’s involvement. (The case was then settled before a further appeal to the Court of Appeal).
Key points for employers
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, but not by influencing the choice of appropriate sanction on the given case.
Any appeal should be conducted by a different person who is more senior than the person who conducted the first disciplinary hearing, for example, a director or group manager. This may not be possible in smaller workplaces where there may be only one owner-manager. Whoever hears the appeal should consider it as impartially as possible.
What information should an employer give to an employee before the disciplinary or grievance meeting?
Employers should always include a fairly 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: Case law examples
Some case law guidance concerning supply of information appears below. Although some cases were decided under statutory procedures repealed in 2009, the guidance remains relevant. For example:
Celebi v Scolarest Compass Group UK and Ireland Ltd (2010)
Employers must be precise when explaining the specific charges faced in a disciplinary procedure.
The claimant in this case collected £3,400 in cash from her employer to take to the bank, but the bank reported that only £400 was received. The employer was overly hesitant about actually accusing her of theft and alleged 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 her unfair dismissal claim at the Employment Appeal Tribunal, as it held that the lack of precision in the charge meant the dismissal was unfair. There should, however, be reductions in compensation for contributory fault and on the basis of Polkey.
Information supplied to the employee should, therefore, be as accurate and honest as possible.
YMCA Training v Stewart (2007)
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.
Draper v Mears Ltd (2006)
The employer should supply enough information so that the employee knows what the allegations against him or her are. In this 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 which was sent to the employee ambiguously referred to conduct which failed to ensure the health and safety of oneself and others. This was insufficient.
What must an employer do to follow the Acas code?
Employers should always stick to the reasonable behaviour enshrined in the Acas code of practice on disciplinary and grievance procedures. Employment tribunals can adjust awards to take into account non-compliance.
The following points are helpful:
- The code must be followed, but it is concise and focuses on the key principles behind the handling of disciplinary and grievance issues.
- In addition to the code, Acas has published detailed non-statutory guidance on handling workplace disciplinary and grievance issues.
- The code does not apply to dismissals because of redundancy.
- The code does not apply to the non-renewal of fixed-term contracts on their expiry.
- The code has four sections – a foreword, some key principles, a section on discipline and a section on grievances.
Case law confirms that the Acas code 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 which requires correction or punishment. If the ill health leads to a failure to comply with a sickness absence procedure then the disciplinary procedures may be necessary. Obviously alternative procedures dealing with the ill health need to be followed.
The 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 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 his or her case
- allow the employee to set out their his or her 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 remains 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 law which gives individuals the right to request and have access to certain personal data)
- 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. Remember that workers have a statutory right to be accompanied at appeal hearings, and that 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.
Organisations should not rely on an appeal to correct earlier failings in the disciplinary process, although a fair appeal may help avoid a finding of unfair dismissal. In Khan v Stripestar Ltd (2015) the employee was dismissed following a six minute disciplinary hearing. The employee appealed the dismissal and the appeal hearing was suspended to investigate the points raised by the employee. The appeal manager investigated thoroughly and interviewed witnesses but confirmed the dismissal.
The unfair dismissal claim failed. The EAT said a disciplinary process can be fair overall where the appeal process is thorough and reasonable.
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 (McMillan v Airedale NHS Foundation Trust (2014)).
Overlapping grievance and disciplinary cases
Where an employee raises a grievance during the disciplinary procedure the latter may be temporarily suspended in order to deal with the grievance. The grievance procedure would then be followed. If the grievance and disciplinary issues are related it may be appropriate to deal with both matters together. 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 Jinadu v Docklands Buses (2015) a bus driver was subject to disciplinary proceedings for poor driving. During the disciplinary proceedings the driver made allegations about some of the managers involved. The employer continued the disciplinary proceedings against the driver and ultimately dismissed her.
In the Employment Appeal Tribunal (EAT) the driver argued (among other things) that the dismissal was unfair because the employer should have put the disciplinary procedure on hold until her grievance 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 be to deal with the grievance first.
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 the 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, allow employees to be accompanied (and inform employees of this as it is separate statutory right).
- Where the grievance is against the line manager the employee should be able to approach another manager or the personnel department.
- Consider arranging for someone who is not involved to take a note of the meeting and to act as an observer.
- Arrange for an interpreter if need be.
- Consider whether any reasonable adjustments are necessary to accommodate employees, witnesses, companions etc.
Hold a meeting with the employee to discuss the grievance, ideally within five working days. Remember that it is the employee who has raised the complaint – the meeting will not be the same as a disciplinary hearing.
The employee may be accompanied at the meeting. Give employees the opportunity to put forward how they feel their grievance should be resolved. It is likely that emotions will be running high, so make allowances for that. 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 you should tell the employee when they might reasonably expect a response. 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.
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.
Copies of meeting records should be given to the employee, including copies of any formal minutes that may have been taken.
What happens if the Acas code is not followed?
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 then 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:
In Holmes v Qinetiq (2016) a security guard with 20 years’ service was dismissed for health reasons. The employer failed to follow the Acas code. The EAT held that the increase of up to 25% did not apply. The Acas code applies to dealing with culpable conduct and not lack of capability. So, 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.
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 also limited the scope of the Acas code in Phoenix House Ltd v Stockman (2016) confirming that the 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.
What is the role of witnesses and witness statements at a disciplinary or grievance meeting?
There are three distinct categories of persons who may be present at the disciplinary or grievance meeting and employees may be confused as to their roles:
- 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 above are all quite distinct.
As well as being provided with copies of witness statements before the meeting with the employee, there should be an opportunity for both parties to call witnesses in person. It has always been good practice to disclose witness statements in advance (and allow the witnesses to be called to the meeting if required). The Acas code encourages this.
In practice, many meetings will proceed without witnesses in person, 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, then the employer and employee must be allowed to verify and 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. (In some cases there is a risk that the meeting then starts to seem more like a tribunal hearing and will increase the length and acrimonious nature of the dispute.)
In unusual cases witness evidence may be considered anonymously, although the evidence may then be treated as having less substance.
What is the role of a companion?
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 (such as suspension without pay or dismissal) could take place.
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.
What can the companion do?
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 actual 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 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.
Can an employee choose any companion at a disciplinary hearing?
All workers can select 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 cases (relying either on human rights or contractual terms) have sought 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.
In the past 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 it is generally not a breach of Article 6 for an employer to refuse to allow a legal representative at a disciplinary hearing.
Although there is no general right to be accompanied by a lawyer, some case law has suggested that in certain limited cases the employee may be entitled to be represented by a lawyer at a disciplinary hearing. This is likely to be where the disciplinary meeting could lead to very serious consequences such as the employee no longer being able to work in their chosen profession. Examples of cases concerning requests to be accompanied by a lawyer at a disciplinary hearing include:
- Governors of X School v R on the application of G (2011): a teaching assistant was at risk of being added to the register of those unsuitable to work with children. However he was not entitled to legal representation at a disciplinary hearing leading to dismissal, and his human rights were not breached. This was because the process leading to banning him from working with children was taken by another authority and was separate from the decision to dismiss.
- Kulkarni v Milton Keynes Hospital NHS Trust and Secretary of State for Health (2009): A a doctor faced being barred from employment in the NHS. He was entitled to be represented at the disciplinary hearing by a qualified lawyer instructed by the Medical Protection Organisation. A key factor was that doctors employed by the NHS are contractually entitled to be represented by a qualified lawyer at disciplinary hearings started on the grounds of capability or conduct.
- In R (on the application of Puri) v Bradford Teaching Hospitals NHS Foundation Trust (2011) the High Court confirmed that, in disciplinary proceedings, Article 6 entitles the employee to legal representation only in exceptional circumstances. Here the employee (who was dismissed for rudeness) was not deprived of the right to practise his profession completely. He could work in private practice and could have returned to the NHS at some point in the future. Therefore, there was no need for the disciplinary process to allow him a lawyer to comply with Article 6. Employers in such situations may voluntarily allow the employee’s lawyer to attend.
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.
Choice of ‘reasonable’ companion
Workers have an absolute right to choose their companion, provided that they fall into one of the permitted categories (that is, a trade union official, certified trade union representative or a fellow worker of their choice). An employer should agree to any companion as long as they fall into one of these approved categories. The employer cannot insist on a work colleague it prefers (Toal v GB Oils Ltd, 2013).
“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
A refusal of the choice of a companion for a disciplinary investigation has been held to be a breach of the implied term of trust and confidence. In Stevens v University of Birmingham (2015) an academic was asked to a disciplinary investigation and had been assisted by a representative of the Medical Protection Society (MPS). 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 MPS served a similar function to a union, and
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 grievances 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 will 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; but
- 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.
Amwell View School v Dogherty (2006) is the leading case. The EAT held that the employee’s secret recording of her disciplinary hearing could be used in evidence before the tribunal. However, the secret recording from the device left in the room during the ‘private’ deliberations of the panel . should be excluded.
By contrast in Punjab National Bank v Gosain (2014) a secret recording of the employer’s private adjournment discussions was admitted as evidence.
What if an employee fails to attend a disciplinary or grievance meeting?
The guidance accompanying the Acas code recognises that there may be occasions when an employee is unable or unwilling to attend a meeting. This may be for genuine illness or perhaps 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. Therefore 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).
- General work record.
- Work experience.
- 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%.
Can an employee be summarily dismissed 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 of an employee so serious that it breaks the contract between employer and employee, so justifying summary dismissal. Summary dismissal means that the employee can be dismissed 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 the employee’s 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 made against them?
- Were there any mitigating circumstances to be considered such as provocation or length of service?
- Have employees been treated consistently?
If an employee is dismissed for gross misconduct but subsequently proves their innocence, will they 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 the employer only has to have reasonable grounds for their 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.
Reasonable belief and investigation
An employer will be able to defend a 'normal' (that is non-automatic) unfair dismissal claim if it can show 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 sufficiency of the reason for dismissal for misconduct. Once the reason has been established, a tribunal must then turn its attention to considering whether or not the employer acted reasonably with regard to all the circumstances of the case, in treating this as sufficient reason to dismiss. 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.
Orr v Milton Keynes Council (2011) shows the importance of emphasising that whether a dismissal is fair or unfair depends on the facts as they are known to the person making the decision to dismiss. Even if other employees and the dismissed employee’s line manager know about some key facts, if the decision maker is genuinely ignorant of these facts then the dismissal may still be fair, based upon what the decision maker knew. The fairness of a dismissal therefore depends upon whether it was reasonable, based on the facts known to the decision maker and not the information known to the employer as a whole. 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 suspected misconduct case 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 Employment Appeal Tribunal and Court of Appeal ruled that the employment tribunal was required to apply the test in Burchell. The test means that the employer carries out as much investigation into the matter as was 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. The investigation should be looked at in its entirety when assessing the question of reasonableness.
As well as the usual case law developments, changes to the tribunal system, and the refunds of unlawful tribunal fees will affect cases involving disciplinary and grievance procedures. See our Tribunal claims, settlement and compromise Q&As for more information on the abolition of the previous tribunal fee system.
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). Prime Minister Theresa May has said she would not 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.