Disciplinary and grievance

//Disciplinary and grievance

Disciplinary and grievance

2021-08-04T10:40:36+00:00 August 4th, 2021|All|

The impact of the pandemic has considerably changed the working landscape and businesses face further challenges in adapting their working practices as lockdown eases and employees return to the office.

ACAS has updated its guidance on how to deal with disciplinary and grievance procedures during the pandemic. The guidance contains suggested adjustments that employers may need to make when implementing the ACAS Code of Practice on Disciplinary and Grievance Procedures.

ACAS Code of Practice on Disciplinary and Grievance Procedures.

The ACAS guidance considers:

  1. The impact of processes when employees are on furlough
  2. The importance of employers meaningfully considering the individual circumstances of each employee, before deciding on any action
  3. The mental health challenges during the pandemic
  4. The impact of social distancing on the dismissal procedure, i.e. working remotely

For more information on dealing with disciplinary matters please contact our team today on 01223 855441.

How does the ACAS Code apply to disciplinary situations?

The ACAS Code of Practice on Disciplinary and Grievance Procedures applies to disciplinary situations – which includes misconduct and/or poor performance.

Establishing the facts of the case

  1. The employer should conduct an investigation in order to establish the facts of the case without unreasonable delay; in some cases it will be necessary to hold an investigatory meeting before having a disciplinary hearing. Where an investigatory meeting is not required, it will be necessary to conduct this investigation by collating evidence for use at the disciplinary hearing.
  2. In disciplinary cases involving misconduct, where practicable, different people should carry out the investigation and the disciplinary hearing.
  3. Disciplinary action should not result from an investigatory meeting only. An employer may wish to allow an employee to be accompanied to the investigation hearing – although this is not a legal requirement.
  4. Where a period of suspension with pay is regarded as necessary, the period should be brief and kept under review. The employer should make clear that the suspension is not considered a disciplinary measure.

Inform the employee of the problem

  1. The employee should be notified in writing if it is felt that there is a disciplinary case to answer. The notification should detail any misconduct or poor performance and possible consequences in order to enable the employee to prepare a response to be heard at the disciplinary hearing. It will usually be appropriate at this stage to provide copies of written evidence along with the notification.
  2. The written notification should give venue information and timings for the disciplinary meeting and should inform the employee of the right to be accompanied.

Hold a meeting with the employee

  1. A meeting should be held without unreasonable delay, whilst allowing the employee a reasonable time to prepare their case.
  2. All parties to the meeting should make every effort to attend. During the meeting the employer should explain the complaint and go through the evidence collated. The employee should be allowed to set out their case in response and answer any allegations against them. The employee should be given reasonable opportunity to ask questions, present any evidence and call witnesses. They should be allowed to raise points about any information provided by witnesses. If witnesses are to be called by either party, reasonable notice should be given in advance.

The employee should be allowed to be accompanied to the meeting

  1. The employee has a right to be accompanied where the disciplinary meeting could lead to:
    – A formal warning being issued; or
    – The taking of some other disciplinary action; or
    – The confirmation of a warning or some other disciplinary action.
  2. The person chosen to accompany the employee may be a fellow employee, a Trade Union representative, or an official employed by a Trade Union.
  3. Employees are required to make a reasonable request in order to exercise the statutory right to be accompanied, for example it may not be reasonable to request a companion whose presence would prejudice the hearing, nor would it be reasonable for employees to ask to be accompanied by a companion from a remote geographical location if someone suitable and willing was available on site.
  4. The companion should be allowed to address the hearing to put forward and sum up the case of the employee and to respond on their behalf to any opinions expressed at the meeting. They should be allowed to confer with the employee during the hearing. They do not have the right to answer any questions on behalf of the employee, or address the hearing if the employee does not wish them to. The companion should also not prevent the employer from explaining their case against the employee.

Decide on appropriate action

  1. If, after the meeting, it is decided that disciplinary or other action is justified, the employee must be notified in writing.
  2. If misconduct is found, or the employee is confirmed to have been performing unsatisfactorily, it is usual for a written warning to be issued followed by a final written warning for a further act of misconduct or for failure to improve within the period specified in the first warning.
  3. If the act is sufficiently serious it may be sufficient not to have the first written warning, and to issue the final written warning. e.g. an act that has a serious/harmful impact on the organisation.
  4. The warning should set out the nature of the misconduct/poor performance and the changes required within a set timeframe. The employee should be informed of how long the warning will remain current. The warning should inform the employee of the consequences of further misconduct/failure to improve.
  5. Decisions to dismiss should be made by those with the authority to do so, and the employee should be informed as soon as possible of the reasons for the dismissal, the date that the contract of employment will end, and the appropriate notice. The employee should be informed of their right to appeal.
  6. Acts of gross misconduct may call for dismissal without notice for a first offence, but a fair procedure should still be followed before dismissing the employee.
  7. An employer should outline in any disciplinary rules examples of acts that would be categorised as gross misconduct.
  8. Where the employee is persistently unable or unwilling to attend a disciplinary meeting without good reason, the employer should make a decision on evidence available.

Provide employees with the opportunity to appeal

  1. The employee should appeal against a decision that they feel is wrong or unjust. The appeal should be held without unreasonable delay and if possible at an agreed time and place. The employee should inform the employer of their grounds for their appeal in writing.
  2. The appeal should be impartial and should ideally be heard by a manager who has not previously been involved in the matter.
  3. The employee has statutory right to be accompanied at the appeal hearing.
  4. As soon as is possible the employer should inform the employee in writing of the outcome of the appeal.

Special cases

  1. Where the employer is considering disciplinary action against an employee who is a Trade Union representative, the disciplinary procedure should be followed, but it is advisable, on obtaining the employee’s agreement, to discuss the matter at an early stage with an official employed by the Union.
  2. Employee’s charged/convicted with a criminal offence – this is not in itself reason for disciplinary action, but the employer should consider whether the employee’s suitability to do the job is affected.

How does the ACAS Code apply to grievance situations?

The ACAS Code of Practice on Disciplinary and Grievance Procedures defines a grievance to include: “concerns, problems or complaints that employees raise with their employers.”

Please note that employees no longer have to raise a grievance before presenting a claim to an Employment Tribunal; however any compensation awarded could be reduced by up to 25%.

Informing the employer that there is a grievance

  1. If the matter cannot be resolved informally, the employee should raise the matter in writing with the employer without unreasonable delay. This written notice should set out the nature of the grievance.

Hold a meeting with the employee

  1. Once the employer has received the written grievance a formal meeting should be held without unreasonable delay.
  2. All parties to the meeting should make every effort to attend. Employees should be allowed to explain the grievance and how they feel it may be resolved. If any investigation is necessary the meeting may be adjourned in order for this to be carried out.

The employee should be allowed to be accompanied to the meeting

  1. If the complaint is about a duty owed to the employee by the employer, the employee will have a statutory right to be accompanied at the meeting.
  2. The person chosen to accompany the employee may be a fellow employee, a Trade Union representative, or an official employed by a Trade Union.
  3. Employees are required to make a reasonable request in order to exercise the statutory right to be accompanied, for example it may not be reasonable to request a companion whose presence would prejudice the hearing, nor would it be reasonable for employees to ask to be accompanied by a companion from a remote geographical location if someone suitable and willing was available on site.
  4. The companion should be allowed to address the hearing to put forward and sum up the case of the employee and to respond on their behalf to any opinions expressed at the meeting. They should be allowed to confer with the employee during the hearing. They do not have the right to answer any questions on behalf of the employee, or address the hearing if the employee does not wish them to. The companion should also not prevent the employer from explaining their case against the employee.

Decide on appropriate action

  1. Once the meeting has taken place, the employer must decide on what action, if any, to take. The employer should inform the employee of this decision in writing without unreasonable delay, and the written decision may set out the action the employer wishes to take. The employee should be informed that they can appeal if they are not satisfied with the action taken.

Allow the employee to take the grievance further

  1. If the employee is not content with the way that the matter has been resolved, they should appeal to their employer without unreasonable delay by setting out the grounds for their appeal in writing.
  2. The appeal should be heard without reasonable delay at a time and place notified in advance to the employee.
  3. The appeal should be impartial and should ideally be heard by a manager who has not previously been involved in the matter.
  4. The employee has a statutory right to be accompanied at the appeal hearing.
  5. Without unreasonable delay the employer should inform the employee in writing of the outcome of the appeal.

Collective grievances

The ACAS Code does not apply to grievances raised by a representative of a recognised Trade Union or workplace representative on behalf of two or more employees. In such cases, the grievance should be resolved via the organisation’s collective grievance procedures.

Read more in this series of blogs “Back to work”

About Aspire Cambridge

Headquartered in Cambridge Aspire Cambridge have been providing cost effective Recruitment and HR solutions to an impressive portfolio of customers spanning the UK and Europe and in 2019, 2020 and again in 2021 awarded “The Best Recruitment and HR Solutions Provider” in England.

From taking on your first employee to managing your greatest resource – people, we’ve got it covered; from Recruitment to Human Resources, we pride ourselves on “Placing People First”. We believe in changing people’s lives for the better. We believe in consistently #placingpeoplefirst and genuinely care. Whether that’s for our employees, candidates or clients – people matter.

For further support, guidance or implementation on any area of this series of articles please contact our HR Consultant today on 01223 855441.

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