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ANNEX D: DISCIPLINE AND GRIEVANCE PROCEDURES - STATUTORY REQUIREMENTS AND GOOD PRACTICE
Statutory requirements
1. The present statutory requirements in relation to discipline and grievance have been in place since 1 October 2005. These require employers to have and to follow at least a basic written disciplinary procedure and, in the event that dismissal is expected, for a dialogue to take place between an employer and employee prior to that dismissal. An employer is also required to have a written grievance procedure and this and the disciplinary procedure must be fair and reasonable in their terms and implementation. Some changes to these statutory arrangements, in particular dispute resolution and the handling of unfair dismissal, will result from implementation of the Employment Act 2008, which is expected to come into force in 2010.
2. It is of vital importance that employers follow their procedures to the letter in matters of discipline and dismissal. In essence, the statutory requirement for standard disciplinary and dismissal procedures is for (1) a letter to issue from the employer to the employee stating the allegations against him or her and the basis of those allegations, and inviting the employee to a meeting; (2) a meeting to take place in which each party has the opportunity to state their case and the employee, who may be accompanied, to be notified of the decision; and (3) if the employee wishes to appeal, to hold an appeal meeting at which the employee has the right to be accompanied, and to inform him or her of the final decision. These standard requirements may be varied only where there has been gross misconduct and an investigation would make no difference. This is likely to be exceptional. If an employee is dismissed without the employer following the statutory procedure and makes a claim at an Employment Appeals Tribunal, the dismissal will be ruled unfair.
Best Practice
3 Employers should have written procedures that are clear, accessible and communicated to employees. Where an employer embarks on a disciplinary process, the employee concerned should be kept fully informed throughout. The initial letter should set out the allegations and the basis for these and the employee must be given an opportunity to respond.
4 Discipline procedures are frequently used to deal both with conduct ("won't do") and capability ("can't do") issues relating to individuals, although ACAS recommends a clear distinction be made between the handling of conduct and capability. It is acknowledged, however, that in many cases employers will find it difficult to make such a distinction between conduct and capability, and indeed there may be a mix of causes. If there is doubt, employers are advised to treat the matter as one of capability.
5 The aim of disciplinary procedures should be to achieve an improvement in conduct, taking into account the severity of the issue or incident in question. Most employers will therefore follow a cumulative approach in terms of disciplinary disposals, allowing an employee the opportunity to improve. This approach will generally provide for disposals of informal and formal oral warnings, first and final written warnings and dismissal. In cases of gross misconduct the employer may dismiss at the first instance, although the employee should know in advance that this is a potential outcome of the disciplinary process in his or her case. More generally, employers should make their disciplinary procedures explicit in terms of the disciplinary disposal likely to arise as a result of particular disciplinary matters.
6. Once a disciplinary warning has expired, it is spent in terms of the disciplinary process, although it may be retained on file for management, but not disciplinary, purposes. Such information may be used, for example, in restructuring or redundancy exercises. If spent disciplinary records are retained for management purposes, this too should be made explicit in the procedures.
7. In all cases apart from exceptional incidents of gross misconduct that are subject to modified disciplinary procedures, there should always be a fact-finding investigation. A preliminary fact-finding should aim to clarify the matter in hand and crystallise the employees' position on that. A more detailed investigation may then be needed fully to gather the facts from a range of sources. This should lead to a recommendation on the need for a disciplinary hearing and an appropriate disciplinary disposal. It is good practice to arrange for the investigations and disciplinary hearing to be undertaken by different managers.
8. The employee under investigation should be kept informed of developments and the employers' investigations should be completed within 6 months of the initial letter to the employee. It is important during the proceedings that the employee understands whether a meeting is investigatory or disciplinary and the consequences for him or her, and that at all times he or she has the right to be accompanied.
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