Overview

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. (A list of other important examples is given at the end of these Q&As.) As explained below, the Acas code of practice on disciplinary and grievance procedures is also of importance.

The Employment Act doesn’t apply to Northern Ireland. Disciplinary, grievance and dismissal resources specific to Northern Ireland are provided by nidirect and the Labour Relations Agency.

Employers and employees should do all they can to resolve disciplinary and grievance issues themselves and 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.

Consistency is important because where one employee has been dismissed, and the other has not, in exactly parallel circumstances, the dismissed employee may be able to challenge the fairness of his or her dismissal.

Employers should always consider how previous similar disciplinary and grievance situations have been dealt with, and try hard to treat employees fairly and in the same way. They must not indulge in favouritism or partiality when disciplining employees, or addressing employees’ grievances.

However, just because an employer treats employees with some disparity, this will not automatically mean the dismissal is unfair. The allegedly similar situations must truly be similar for inconsistent treatment alone to make the dismissal of one of the employees unfair.

Organisations should remember that:

  • A disparity in treatment could lead employees to believe that certain categories of conduct will not lead to dismissal because such behaviour did not lead to disciplinary measures on previous occasions.
  • It may be reasonable to treat two employees differently if there are mitigating circumstances, or if one employee has been able to convince the organisation that the behaviour will not be repeated.
  • If an organisation has excused particular behaviour in the past, but has made it clear that the same 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. Kay was a deputy ward nurse manager in a mental health ward. A doctor made a formal complaint about bullying by her. An investigation found she had engaged in bullying behaviour with another colleague. She was dismissed following disciplinary proceedings, but no action was brought against her colleague.

The Employment Appeal Tribunal found the dismissal was fair. The colleague was far less to blame than the nurse manager, so the disparity in dismissing one and not the other was justified. The issue will always be ‘Was it reasonable to dismiss the employee concerned?’. However, tribunals will treat any arguments based on disparity of treatment with care.

Employers should always stick to the reasonable behaviour enshrined in the Acas code when dealing with disciplinary and grievance issues as employment tribunals can adjust awards to take account of non-compliance. The code is concise and focuses on the key principles behind the handling of disciplinary and grievance issues. Acas has also provided detailed non-statutory guidance on handling these issues.

Note that the code does not apply to:

  • dismissals by reason of redundancy
  • dismissal due to the non-renewal of fixed-term contracts
  • ill health dismissals (this should be dealt with under alternative procedures).

The code usually applies only to situations where an employee’s alleged act or omissions involves misconduct or poor performance which requires correction or punishment, but if ill health leads to a failure to comply with a sickness absence procedure, then the disciplinary procedures may be necessary.

When drafting, the following should be considered:

  • Are there provisions for dealing with minor matters informally?
  • Does the policy encourage the use of mediation to resolve disputes where appropriate?
  • Is the need for prompt handling of issues stressed?
  • Is the policy clear and unambiguousness?
  • Does it clearly state who is covered (for example, employees, agency workers, temps)?
  • Does it specify what action can be taken and by whom?
  • Does it state that a dismissal decision will be taken by senior management only?
  • Are matters that amount to gross misconduct clearly identified?

Organisations should ensure that there is no dismissal for a first breach of discipline, unless for a matter of gross misconduct. They should confirm any decision taken, explain the reasoning behind it, and inform the employee concerned in writing that there is a right of appeal.

Procedure

The policy should specify that the organisation will:

  • establish the facts
  • investigate promptly
  • clarify 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
  • notify the employee in writing if it is decided that there is a disciplinary case to answer.

If there is a case to answer, the procedure should require the employer to hold a meeting with the employee to discuss the problem and should ensure:

  • the notification of the meeting (including copies of witness statements) contains sufficient information to explain the
  • alleged problem and its possible consequences
  • the meeting is held promptly, while allowing the employee reasonable time to prepare his or her case
  • the employee is allowed to set out his or her case, call any witnesses and answer any allegations
  • where possible a different manager conducts the meeting to the person conducting the investigation
  • the employee is allowed 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).

Employers should also 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 and, if necessary, arrange for an interpreter to be present.

Organisations should:

  • keep a written record of 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 1998 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 and so on.

It is also sensible to provide for what will happen in the event of failure to attend meetings (see Q What if an employee fails to attend a disciplinary or grievance 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 and that 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 final warning should set out the nature of the misconduct or poor performance and the change required within a specified timescale. The employee should be told 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, and procedures should give examples of acts which the employer regards as gross misconduct.

Appeal

Employees found to have committed an act (or acts) of misconduct must be given the chance to appeal. These 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 should be informed in writing of the results of the appeal hearing as soon as possible. A written record should also 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)).

(For how to deal with disciplinary and grievance procedures, see Q What should a grievance procedure contain?)

Deciding who should make a disciplinary decision on behalf of the employer can sometimes be a difficult issue.

Organisations should have a disciplinary, grievance or dismissal policy which specifies the manager with authority to hear the case. Any decisions to suspend or dismiss an employee 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 for an organisation to implement a fair dismissal for misconduct, the employer must:

  • have a genuine belief, based on reasonable grounds, that the employee committed the misconduct
  • have undertaken 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 (see Case law below). An employee has the right to put their case to the manager making the disciplinary decision without the negative influence of others.

Legal privilege

Ideally HR advice should be limited to questions of law, procedure and process. The actual findings on culpability, and the sanction, should be decided by the manager with authority to hear the case.

Emails and other documents which might suggest improper influence could be used as evidence 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 be protected by 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 its role is to give advice on procedure and not its opinion on whether an employee is guilty. If HR gives limited advice on the appropriate sanction, this should be to ensure consistency with how other employees have been treated for similar offences, and not with the intention of influencing the choice of appropriate sanction on the given case.

Any appeal should be conducted by a different person, who is senior to the person who conducted the first disciplinary hearing, for example, a director or group manager. This may not be possible in small workplaces where there is only one owner-manager. Whoever hears the appeal should consider it as impartially as possible.

Case law

In West London Mental Health Trust v Chhabra (2014), the Supreme Court confirmed an investigator may seek advice from HR on questions of procedure and so on, and HR may also provide assistance in making sure the report of the investigation is clear and that all matters have been addressed. However, HR should not make alterations to the report to the extent that it is no longer the product of the investigating manager.

In Ramphal v Department for Transport (2015), the Employment Appeal Tribunal (EAT) found the HR department had gone too far. A manager carried out a formal investigation, and further disciplinary proceedings, into the transport and subsistence expenses claims of an inspector who travelled a lot as part of his role, because the expenses claim seemed high.

The 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:

  • positive comments being replaced with negative ones
  • the level of misconduct changing to gross misconduct
  • the sanction moving from a final warning to summary dismissal.

The manager was inexperienced at conducting disciplinary hearings and, in the unfair dismissal claim that followed, it was inferred that HR thought the explanations from the employee were unconvincing. The manager had believed that any excessive expenses claims and credit card misuse on the part of the employee were not deliberate, and that he had given plausible reasons which would have resulted in a final written warning. But, following HR’s involvement, this had changed to a belief that the employee had misused the credit card, resulting in his dismissal for gross misconduct.

The 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, law and appropriate sanctions to achieve consistency, which was the proper extent of HR’s involvement.

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 between 0 and 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. Interestingly the Employment Appeal Tribunal case Ezsias v North Glamorgan NHS Trust (2011) suggested 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 – although 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.

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 if 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 have a chance of having a subsequent claim barred, at least temporarily.
  • 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 under the statutory procedures which clarify whether the employee has initiated the 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 although 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 was 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.

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:

Investigation

  • 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.

Further steps

  • 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.

Action

  • 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 warning or written 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 they had a genuine belief that the incidents occurred at the time they take action.

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.

This issue of evidence has been discussed on a number of occasions in relation to the disciplinary process. 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, a jealous jilted lover?
  • 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] IRLR 235.

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 without the dismissal being unfair. The employees would be dismissed on a reasonable suspicion (Monie v Coral Racing Ltd [1981] ICR 109, CA).

In Parr v Whitbread plc t/a Threshers Wine Merchants [1990] IRLR 39, the EAT set out five principles for employers faced with the prospect of multiple dismissals:

  1. Would the conduct if committed by an individual justify dismissal?
  2. Has the employer conducted a thorough investigation, satisfying the employer that more than one person could be responsible?
  3. Was it reasonable to identify this particular group of employees as having been capable of committing the conduct complained of?
  4. Could each individual in isolation have committed the act?
  5. Given the evidence, can the employer identify the culprit?

Conduct that occurs outside of the workplace can justify a dismissal. However, the conduct must be of particular relevance to the job in question.

In relation to criminal charges an employer will still be required to conduct a full and thorough investigation which may include suspension of the employee. It is not necessary to refrain from any such action until the outcome of the criminal proceedings is known; indeed such a delay could render a potentially fair dismissal an unfair one. However, it is extremely important that an employer carries out its own investigation. 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 offences outside the workplace?
  • 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?
  • Does the incident involve or affect other employees?

An example of these points was the case of The Post Office v Liddiard [2001] EWCA Civ 940 (7 June 2001). The tribunal had found that employer had unfairly dismissed a convicted football hooligan. However, the Court of Appeal decided the tribunal had not considered the issue central to the case, namely whether the employee's conduct which led Post Office to believe that they had been brought into disrepute was a sufficient reason for the dismissal.

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 who 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 for an employer 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
  • undertake 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

In West London Mental Health Trust v Chhabra (2014) the Supreme Court said an investigator may seek advice from HR on questions of procedure etc. HR may also give assistance to the investigator to ensure the report was clear and that all matters had been addressed. However, alterations should not be made to the extent that the report was 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 was appointed to carry out a formal investigation and conduct any consequent 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 the following:

  • The positive comments were replaced with negative ones.
  • The level of misconduct changed to gross misconduct.
  • 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 seemed to change from holding a belief 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 etc 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.

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 upon. 

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 the statutory procedures the guidance remains relevant. For example:

Celebi v Scolarest Compass Group UK and Ireland Ltd (unreported, UKEAT/0032/10)

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 employers to take to the bank, but the bank reported that only £400 was received. The employers were 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 successfully claimed that that the dismissal was unfair because the accusation of theft had not been put to her. However she won her unfair dismissal claim as the Employment Appeal Tribunal 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] IRLR 185, EAT

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] IRLR 869, EAT

The employer should supply enough information so that the employee knows what the allegations against him are. In this case an employee was dismissed for breaching the employer’s no drinking 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.

The Acas code of practice on disciplinary and grievance procedures is used as a benchmark by employment tribunals when considering the fairness or otherwise of an employer's procedure and actions. The code is intended to ensure a reasonable standard of behaviour from both employers and employees and if a tribunal finds procedures have failed to adhere to it, the tribunal has discretion to adjust awards up or down accordingly.

A tribunal will consider why the code wasn’t followed and the extent to which this failure was unreasonable. If it finds the employer culpable, the award may be increased by up to 25%. If the employee is found 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.

Notification

The code confirms that the notification of the employee before a meeting should contain sufficient information about the alleged misconduct, or poor performance, and its possible consequences, to enable the employee to prepare to answer the case at a disciplinary meeting. Employers should always include a fairly detailed and accurate description of the allegations in the letter (or for grievances, details of the employer’s response to the employee). The notification should also give the time and venue for the disciplinary meeting and advise the employee of their right to be accompanied.

Evidence

The law relating to 'evidence' is complex. Evidence can be in:

  • documentary form
  • verbal explanations given by witnesses in a tribunal or court
  • information on the hard drive of a computer, photographs, CCTV footage or a sound recording.

It would normally be appropriate to provide copies of any written evidence, and as much supporting detail as possible, for example, any witness statements (which may be anonymised in appropriate cases). The employer should also consider including other information to the employee, including emails and letters, although it is not necessary to disclose all the evidence.

However, to ensure any resulting dismissal is fair, organisations must disclose to the employee as much material as possible in advance of the hearing, which should include copies of any documents or other evidence the employer intends to rely on. Ultimately an employer will usually base its decision on the verbal account given by other employees, summarised in witness statements.

Allegations

Employers must be precise when explaining the specific charges faced in a disciplinary procedure and information supplied to the employee should be as accurate and honest as possible. The claimant in Celebi v Scolarest Compass Group UK and Ireland Ltd (2010) collected £3,400 in cash from her employer to take to the bank, but the bank reported only receiving £400. The employer was hesitant about actually accusing her of theft and alleged a 'loss of £3,000'. Despite this euphemism, the employee knew she was being accused of theft. Following an internal disciplinary hearing, she was dismissed for a number of failures, including discrepancies in banking.

The employee’s unfair dismissal claim, on the grounds that the accusation of theft had not been put to her, was initially unsuccessful. However she won in the Employment Appeal Tribunal, as it held that the lack of precision in the charge meant the dismissal was unfair (the EAT did, however, specify reductions in compensation for contributory fault).

Organisations should supply enough information so that the employee knows what the allegations against him or her are. In Draper v Mears Ltd (2006), an employee was dismissed for breaching the employer’s alcohol policy when using a company van for personal use. The tribunal considered it insufficient to refer ambiguously in the letter sent to the employee to conduct which failed to ensure the health and safety of oneself and others.

Employers should take a common sense approach. While it is acceptable to supply additional information, explaining the basis of the allegation in verbal or written form, after the initial letter but before the disciplinary meeting, this is not ideal.

Employers should have separate procedures for dealing with conduct and under performance or incapability and should ensure they follow the appropriate procedure as fully as possible.

Capability

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 but the EAT held that the increase of up to 25% did not apply because the code applies to dealing with culpable conduct and not lack of capability.

Where the issue is solely capability due to genuine ill health, the code does not have to be followed but employers should be careful where poor performance is involved. This must be investigated in full, with the use of a disciplinary procedure in compliance with the Acas code, until it is certain that the issue is definitely restricted to incapability due to ill health.

Trust and confidence

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.

In a minority of cases, an employer that 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 where this was caused by the employee’s conduct. This is because the dismissal is then due to ‘some other substantial reason’ (the breakdown in trust and confidence) rather than being a conduct dismissal (see, Ezsias v North Glamorgan NHS Trust (2011))

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 between 0% and 25%. If the tribunal finds the employee to be at fault then the award may be decreased by between 0% and 25%. The size of the employer is a relevant factor in considerations.

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 another 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 and this Q&A primarily concerns the role of witnesses.

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 then 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.

During the meeting stages of the disciplinary grievance and dismissal procedures all workers have a right to be accompanied by a trade union representative or a colleague of their choice, but this does not extend to legal representation. However, a 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 ability to practise their chosen profession is at stake.

If the employee is dismissed, a failure to allow them to bring a companion may lead to an unfair dismissal claim. There is also a separate claim of compensation for failure to allow a companion. Workers must make a reasonable request to their employer to be accompanied.

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, demotion or dismissal) could take place. The right also applies to the confirmation of a warning or some other disciplinary action (such as an appeal hearing).

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.

The Acas code provides confirmation of the minimum right to be accompanied and guidance on how it should be applied. In March 2015 small changes were made to the Acas code to reflect the Employment Appeal Tribunal’s judgment in Toal v GB Oils Ltd (2013) (see ‘Choice of reasonable companion’ below). An employee has an absolute right to request their choice of trade union representative or workplace colleague to accompany them, provided the request to be accompanied is itself reasonable.

Note that the right to be accompanied applies to employees and workers.

Family members

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.

Legal representatives

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, recent 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 where employers should have allowed the employee to be accompanied by a lawyer at a disciplinary hearing include:

  • Governors of X School v R on the application of G (2010): A teaching assistant was at risk of being added to the register of those unsuitable to work with children. However the employer was found not to have breached the assistant's human rights in refusing him permission to be accompanied by a lawyer at the disciplinary hearing.

  • Kulkarni v Milton Keynes Hospital NHS Trust and Secretary of State for Health (2009): 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.

However, 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 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 and the possibility of a breach of the implied term of trust and confidence between employer and employee.

Choice of ‘reasonable’ companion

Another problem arising with the legislation concerning companions is whether employers had to allow a reasonable:

  • request to be accompanied, or
  • choice of companion.

The case mentioned below eventually decided that workers had an absolute right to choose their companion, provided that they fell into one of the permitted categories (that is, a trade union official, certified trade union representative or a fellow worker of their choice). The companion does not have to be reasonable. In other words the 'reasonableness' requirement does not apply to the precise choice of companion.

To reflect this, Acas has changed the wording of its code relating to the legal right of workers to be accompanied at a disciplinary or grievance hearing. The revised code reads:

“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.”

Acas has also revised its non-statutory guide to handling disciplinary and grievance situations to reflect this change.

The revision comes as a result of a 2013 case which decided that the previous Acas code did not accurately reflect the law on the statutory right of accompaniment. In Toal v GB Oils Ltd (2013) the employer refused a request from two employees to be accompanied by a trade union official at a grievance hearing. The employer preferred that a work colleague and another trade union official should act as companions instead. The Employment Appeal Tribunal held that an employee’s request to be accompanied by a particular companion does not have to be reasonable.

An employer should agree to any companion as long as they fall into one of the ‘approved categories’ within the meaning of section 10(3) of the Employment Relations Act 1999, which includes trade union officials, certified union representatives or fellow workers.

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 at the University 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 due to the:

  • inequality in the circumstances
  • seriousness of the allegations
  • fact that the MPS served a similar function to a union, and
  • representative having been permitted to attend up to that point.

The role of the companion

Acas also 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.

Statutory compensation for 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. This is a calculated risk as although it is a technical breach of both the law and the Acas code, workers may be reluctant to bring claims to recover very low levels of compensation unless they have union support. The employment tribunal issue fee to bring such a claim is £250 and the hearing fee of £950; it therefore seems unlikely that many workers would be willing to pay these fees just to recover nominal compensation.

However if the problems with the employee also lead to a dismissal, then an automatically unfair dismissal claim may arise if there was a refusal to allow one of the listed types of companion.

No. Although it is rare, the employer and employee may agree that a sound recording is to take place, or the employer’s own procedure may give employees 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.

The more common course of action is for an impartial employee to 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.

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 refix 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 organisation has its own disciplinary and grievance policy which addresses failure to attend meetings.

Where there has been a failure to attend a meeting Acas recommend 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, you should inform the employee that there is no alternative but to make a decision on the evidence available in their absence. Keep a careful record of the employee’s failure to attend the meetings and the attempts to reconvene.

Employees who do not follow the code may see their compensation reduced by up to 25%.

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.

The Acas code provides guidance for cases of gross misconduct.

After the disciplinary process has been completed

Before deciding to dismiss, ask:

  • 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 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. However the employer will have to show reasonable grounds for their belief based upon a reasonable investigation and that they followed the Acas code of practice on disciplinary and grievance procedures. If the employer has not followed this regime there is a risk that the dismissal may be unfair.

Reasonable belief and investigation

An employer will be able to defend a 'normal' (that is non-automatic) unfair dismissal claim if they can show they genuinely believed that the employee was guilty of misconduct. The employer should have reasonable grounds for their belief based upon 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 their 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, that is what they would have done had they been the employer; instead 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 totality of 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.

Thorough investigation

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. He explained that the high mileage was due to a number of factors, including difficulty in parking, one-way road systems and road works. 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 every single journey was above the AA-suggested mileage and 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, including the introduction of tribunal fees, are being reviewed and any further changes will affect disciplinary and grievance procedures. See our Tribunal claims, settlement and compromise Q&As for more information on the introduction of tribunal fees and the recently announced government review of their impact.

Brexit

For information on what Brexit may mean for employment law, read the blog by our Public Policy Advisor (Employer Relations) and visit our resource hub..

The legislation and case law on disciplinary and grievance procedures is not derived from the EU. Therefore 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 May has said she would not take the UK out of the ECHR, which suggests the Article 6 right will remain.

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