Our second article in the 'Breaking Down the Handbook' series looks at disciplinary and grievance procedures, in particular considering why these are necessary, what they should contain and whether they should have contractual status.
Disciplinary and grievance procedures - why have them?
Under section 1 of the Employment Rights Act 1996, employees are entitled to receive a written statement of employment particulars setting out certain information within two months of beginning employment. Included within that information are:
- any disciplinary rules applicable to the employee;
- any procedure applicable to the taking of disciplinary decisions relating to the employee or to a decision to dismiss the employee;
- details of the person to whom the employee can appeal the outcome of a disciplinary decision;
- details of the person to whom the employee can raise a grievance and the manner in which a grievance should be made.
Alternatively, where an employer does not want to include all that information in the written statement, particularly where this is in the form of a contract of employment setting out binding obligations, reference can simply be made to a separate document specifying such details, hence the existence of disciplinary and grievance procedures.
Such procedures can also take account of the ACAS Code of Practice on Disciplinary and Grievance Procedures and other best practice advice from ACAS to ensure that employers do not fall foul of such standards which could result in increased compensation where successful Employment Tribunal claims are made.
What information should such procedures contain?
(a) Who is covered?
Such procedures should make clear to whom they apply. Since only employees have the right to claim unfair dismissal, many employers apply their disciplinary and grievance procedures to employees only. It is up to the employer to decide whether to give workers who are not also employees access to the procedures, although this could in fact lead an Employment Tribunal to conclude that there was sufficient control to make the person an employee and is therefore not advised.
(b) What is covered?
In terms of disciplinary procedures, often the same procedure is used for misconduct and poor performance/attendance. While there is nothing legally wrong with such an approach, many employers prefer to have a separate capability procedure to cover performance / attendance to reflect the different context (misconduct being a wilful act, capability not so) believing that it may give the wrong message to class performance issues as being in the same category as misconduct. Whichever approach is taken, the disciplinary procedure should make clear what matters will be dealt with under it.
In a similar way, grievance procedures should relate to concerns arising out of the employment relationship. Many employers choose to have a separate policy for dealing with issues of bullying and harassment and it is advisable that concerns which relate to allegations of illegal activities or malpractice are raised under a whistleblowing procedure. If such policies exist, the grievance procedure should clearly set out which matters are to be raised under these alternative procedures and which are appropriate for the grievance process.
(c) Is an informal stage necessary?
The ACAS guidance suggests that, in the first instance, minor misconduct or grievances should usually be dealt with informally by way of a conversation with the relevant employee(s). While it is good practice to keep a note of any discussions on the employee's personnel file as evidence that the matter has been raised, in the case of misconduct, any such note should not form part of an employee's disciplinary record or be taken into account in future proceedings. Otherwise the informal discussion will be likely to count as a disciplinary hearing, to which the statutory right to be accompanied would apply.
(d) The right to be accompanied
This right only arises in relation to grievance hearings or a disciplinary hearing which could result in:
- a formal warning being issued;
- 'some other action' being taken; or
- the confirmation of a warning or other action.
It therefore does not apply during investigative interviews and this should be clearly explained in the procedure. However, there may be other situations where an employer should consider allowing an employee to be accompanied, for example with a disabled employee if it would help to overcome a disability-related difficulty. It would also be good practice to allow an employee who has difficulty understanding English to be accompanied, otherwise there may be a risk of indirect race discrimination.
Such procedures should also clearly explain the potential outcomes from either a grievance or disciplinary hearing. In terms of disciplinary procedures, it is good practice for employers to reserve the right to leap-frog stages of the procedure and levels of warning, depending on the seriousness of the misconduct while being mindful that the ACAS Code states that dismissal for a first offence should only be considered in cases of gross misconduct.
The ACAS Code requires a right of appeal to be given against any disciplinary action or grievance outcome and again this should be set out in the relevant procedure along with the process to follow to raise an appeal. It is important to note that the ACAS Code does not specify a time limit for appeals, although the accompanying guidance recommends that procedures should set a time limit for appeals and that five working days is usually enough in most cases, although employers should consider extensions depending on the circumstances.
Should these procedures be contractual?
It is generally better for employers to make disciplinary and grievance procedures non-contractual as it will then be easier to change them or to depart from them where this is appropriate in the circumstances. It also avoids arguments that employees have a contractual right not to be dismissed until the procedure has been followed or that a dismissal was in breach of contract because, in the employee's opinion, the matter only merited a warning.
Review and update
It is important that employers keep disciplinary and grievance procedures updated on a regular basis to take account of developments within the business or employment law. For example, the upcoming General Data Protection Regulations present an opportunity for employers to update disciplinary rules clarifying the requirement on employees to comply with data protection obligations and grievance procedures to cover concerns relating to any potential breach of data protection.
Look out for our next article in this series which will consider absence management procedures.