Ideally, the person hearing the appeal should be more senior than the person responsible for making the decision to dismiss and, following the appeal meeting, the employer should write to the employee to give them the final decision. Some organisations have an express policy dealing with bullying which should correspond with the stages in the disciplinary and grievance process. An employer should have alternative procedures for dealing with ill health, unless the ill health leads to a failure to comply with a sickness absence procedure, in which case disciplinary procedures may be necessary (see Absence procedures Q&As). Discover our practice guidance and recommendations to tackle bullying and harassment in the workplace. Employers do not need to follow the Acas Code when dealing with ill-health capability as this does not involve matters of misconduct or poor performance. Find out about the Energy Bills Support Scheme, Acas Code of Practice on disciplinary and grievance procedures, View a printable version of the whole guide, who the employee should contact about a grievance, say that if the problem cant be resolved informally, there will be a meeting with the employee, called a grievance hearing, set out time limits for each stage of the process, identify who to contact if the normal contact person is involved in the grievance, explain how to appeal a grievance decision, state that employees can be accompanied in any meetings by a colleague or union representative, outline what happens if a grievance is raised during disciplinary action. Investigation. It suggests 12 months for a final written warning and six months for other warnings. Acas guide to discipline and grievances at work | Acas It is a common misconception that an employer can simply dismiss an employee for gross misconduct. Effective Ways To Handle Employee Grievances: 1. date, time and place of each incident, the employees observations and any other relevant details. Different witnesses may have different versions of what happened and the employer must decide which witness is to be believed. Manage Workplace Grievances | TAFEP Visit our sites for the latest information on people management and development. The Employment Appeal Tribunal said that compensation would be awarded, but that this would probably be nominal as they suffered no loss or detriment as they were accompanied albeit by someone else. Find the route to CIPD membership that works for you and the membership grade that demonstrates your level of knowledge and experience. Here the employees disciplinary record, and the belief that he would not improve, justified the employers decision to dismiss. A grievance procedure is used to deal with a problem or complaint that an employee raises. The court held that the expired warning could be taken into account when dismissing the employee. Recognize the grievance: 3. The employer only needs a reasonable belief based on a thorough investigation to validate its subsequent actions. 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. Following the involvement of the HR department in a disciplinary procedure that would have resulted in a final written warning, the outcome of that procedure changed to dismissal for gross misconduct. Organisations should not rely on an appeal to correct earlier failings in the disciplinary process, although a fair appeal may help employers avoid findings of unfair dismissal. HR should be clear in emails and meetings etc that it will give advice on procedure etc and not its opinion on whether an employee is guilty. The need for clarity and unambiguousness. The UK legal position Disciplinary policy and practice A grievance procedure is a formal way for an employee to raise a problem or complaint to their employer. Consider whether any reasonable adjustments are necessary to accommodate employees, witnesses, companions etc. If the employee fails to attend the appeal the employer should investigate the reasons for this and rearrange if appropriate. choose a family member as a companion instead. Acas Code of Practice on disciplinary and grievance procedures Extract Fairness and transparency are promoted by developing and using rules and procedures for handling disciplinary and grievance situations. However, the secret recording from the device left in the room during the private deliberations of the panel were not admissible as evidence. As it is the employee who has raised the complaint, the meeting will not be, It is possible that the grievance may be resolved. Step 1: Study the problem Find out who is affected by the grievance. The employer should 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. The Court of Appeal decided the tribunal had not considered whether the employer had acted within the range of reasonable responses by treating the employees bringing the organisation into disrepute as a sufficient reason for the dismissal. It will take only 2 minutes to fill in. The Information Commissioner recommends employers have clear procedures on handling expired warnings and how long they are retained (see our, Data protection and GDPR in the workplace. The Information Commissioner recommends employers have clear procedures on handling expired warnings and how long they are retained (see our Factsheet on Data protection and GDPR in the workplace). This may not be possible in smaller workplaces. You should ask the employee if the problem is now resolved for them. Most common employee Grievances in the public and private sector are four types : 1) Pay and benefits grievances 2) Bullying grievances . In, Shrestha v Genesis Housing Association Ltd (2015), support worker had to travel by car to see clients at their homes. This case was returned to the employment tribunal for reconsideration. 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. 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. You can appeal if you do not agree with your employers decision. 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. Simple 6-step grievance procedure However, each case depends on its own facts, the grievance raised and the disciplinary proceedings in question. You can find out more in the Acas Code of Practice on disciplinary and grievance procedures. Some organisations have an express policy dealing with bullying which should correspond with the stages in the disciplinary and grievance process. 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. Most disciplinary procedures will allow an employer to give verbal, written and final written warnings, which will have a defined lifespan. The Acas code also does not apply to redundancy dismissals or the non-renewal of fixed term contracts on their expiry. The step-ladder procedure of grievance handling is a widely used technique. 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. The changes entailed: The managers positive comments were replaced with negative ones. Case law confirms that refusing a choice of a companion for a disciplinary investigation can be a breach of the implied term of trust and confidence. Well send you a link to a feedback form. in the workplace is to follow the organisations grievance procedure with respect to the bullying and the organisations disciplinary process with respect to the alleged perpetrator. 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. The following points can be used as guidance: Statements should be in writing (with names removed to preserve anonymity) and made available to the employee or their representative. then the dismissal will be fair, even if the employee subsequently proves they did not do whatever the employer thought they did. Employees and workers have a statutory right to be accompanied where a disciplinary meeting could result in a formal warning or some other disciplinary action. Employers do not have to remove expired warnings from an employees file, unless their disciplinary policy requires this. 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. Examples of Grievances in the Workplace | BrightHR It may or may not be justified but needs to be tackled very carefully. This was insufficient (, If witnesses do attend, the employer and employee must be allowed to question them about the information they have provided. Copies of meeting records should be given to the employee, including copies of any formal minutes taken. Employers should, therefore, ensure that their own dismissal, disciplinary and grievance policies and procedures comply with the Acas code. The regime is intended to simply reflect reasonable behaviour. A well-drafted policy will always include informal stages which should be followed in appropriate cases. Large organisations may wish to allow a further appeal to a higher level of management. Before dismissing, employers should consider the factors listed above. 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. Find out about the Energy Bills Support Scheme, Redundancies, dismissals and disciplinaries, Acass step-by-step guide to formal grievance procedures, Acas code of practice on disciplinary and grievance procedures, View a printable version of the whole guide. Roles and Responsibilities . Position and length of service (although sensible employers will not treat employees differently on grounds of length of service to avoid age discrimination claims). and credit card misuse were not deliberate and that the employee had given plausible reasons for this (which would have resulted in a final written warning), to a belief that the employee had misused the employers credit card, which resulted in his dismissal for gross misconduct. The employer conceded that his dismissal was unfair because it had not requested an up-to-date occupational health report after the employee had had an operation which had effectively resolved the previous pain. This right had been breached by the employer. (Otherwise, there is a risk that the meeting starts to seem more like a tribunal hearing, which will increase the length and acrimonious nature of the dispute.). This is conduct so serious it breaks the contract between employer and employee, so justifying summary dismissal. 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. Employers should carry out promptly any necessary investigations to establish the facts behind the grievance. HR can educate managers to reach strong decisions, explaining that they are entitled to, Appeal procedures: McMillan v Airedale NHS Foundation Trust: Court of Appeal: July 2014, If an appeal is the final right of appeal, as in this case, and the sanction was increased, then the employee would have no appeal against dismissal. Whether a dismissal is fair or unfair depends on the facts as they are known to the person making the dismissal decision. Most organisations will have existing policies which do comply with the Acas code. As always, the fairness of a dismissal depends upon whether the employer has acted within the range of reasonable responses. If the employee fails to attend the appeal the employer should investigate the reasons for this and rearrange if appropriate. Dont worry we wont send you spam or share your email address with anyone. There may also be a companion invited by the employee. Subject to the employees views, the matter could be raised within the framework of the disciplinary investigation. Most organisations will have existing policies which do comply with the Acas code. The employer said that the chosen companion had to be reasonable and that, if there had been any breach, it had been waived by the employees anyway, as they were accompanied to their grievance meetings and appeal hearings. If employers are in doubt whether the Acas code applies, then it is probably safer and good practice to follow it anyway, because employment tribunals can adjust any award made by up to 25% if there has been a failure to comply with the code when it is applicable. 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. However, the law states that the employer must permit the companion to do any or. Any warning should set out the nature of the misconduct or poor performance and the change required (with a timescale). Was the employee given sufficient details of the allegations against them? The guard claimed unfair dismissal and requested that the employment tribunal should apply the permitted percentage uplift in any award as a result of the employers failure to follow the Acas Code of Practice on Discipline and Grievance. Generally, the employer should not increase the sanction from the previous hearing unless this is expressly provided for in the discipline and grievance policy. Could each employee in isolation have committed the act? implications involved in being dismissed. the meeting but, if not, the employer should tell the employee when they might reasonably expect a response and confirm the outcome of the meeting in writing. Whatever stage you are in your career, we have a range of HR and L&D courses and qualifications to help you progress through your career in the people profession. The employees 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. There is no absolute obligation on employers to suspend the disciplinary procedure - employers can exercise their discretion. Is an employee dismissed for gross misconduct likely to succeed in an unfair dismissal claim? This person should not be a witness to any of the events giving rise to the hearing. Following HRs involvement, the managers belief changed from thinking that any excessive expenses. Employers do not have to remove expired warnings from an employees file, unless their disciplinary policy requires this. Here we list a selection of key cases on discipline and grievance issues, providing a summary of the decision and implications for employers. Many employers will have separate disciplinary procedures for dealing with conduct, and different procedures for dealing with matters of under-performance or incapability. If the employer has been accepted 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. A tribunal will ask if the employers actions fell within a band of reasonable responses open to the employer. It is not always reasonable and fair to dismiss an employee who is found guilty of gross misconduct. Encouraging the use of mediation to resolve disputes where appropriate. If youre a worker and youve tried solving a problem or concern informally by talking to your manager but youre not satisfied, you can make a formal grievance complaint in writing. It will take only 2 minutes to fill in. Interview the alleged harasser confidentially and keep a record of that. If the only issue with the employee relates to ill health the Code need not be followed. An employer will be able to defend a non-automatic unfair dismissal claim (see our Unfair dismissal Q&As) if it can show it genuinely believed that the employee was guilty of misconduct. 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. It is not necessary to enclose all the information or evidence the employer has. and it was not manifestly inappropriate to have given the warning at all. The procedures should be followed consistently for all such allegations. This may not. The fairness of a dismissal depends on whether it was reasonable based on the facts known to the decision maker and not the information known to others in the organisation. The employee can raise a grievance if: they feel raising it informally has not worked they do not want it dealt with informally it's a very serious issue, for example sexual harassment or whistleblowing Following a formal procedure Follow up Action 9. Review and Modification, if Need be 10. Published July 2020 Some disciplinary policies may allow for longer set periods for misconduct verging on gross misconduct, or where there has been a history of warnings. There is also the possibility of a breach of the implied term of trust and confidence between employer and employee. Where an employee raises a grievance during disciplinary proceedings, the procedure may be temporarily suspended in order to deal with the grievance. You have accepted additional cookies. There is still a breach of the rules if a companion is refused and the employee is accompanied to meetings and hearings with other companions. The Employment Appeal Tribunal (EAT) held that the employees request to be accompanied by a particular companion does not have to be reasonable. However, the employer may voluntarily allow the employee to be accompanied by a lawyer if the employee wishes to instruct one. 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. in deciding to dismiss. Raise a grievance at work: Grievance procedure - GOV.UK 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. If a request is made, an employer must allow the employee (or worker) to be accompanied. For example, in Khan v Stripestar Ltd (2015), Khan was dismissed following a six-minute disciplinary hearing. If the employees grievance is not upheld, the reasons for that should be carefully explained, as should the employees right to appeal. Sometimes the complaint doesn't reveal the underlying reason for the unhappiness. Some disciplinary policies may allow for longer set periods for misconduct verging on gross misconduct, or where there has been a history of warnings. The five-step grievance handling procedure - Castle Associates is whether internal processes encompass a mediation stage. An employee (or worker) has the right to make a reasonable request to be accompanied. Does the incident involve or affect other employees? Was the employee given adequate opportunity to respond to allegations? If you need this document in a more accessible format, email digital@acas.org.uk. You have rejected additional cookies. Other relevant issues will include the seniority of the employee, any effect the conviction has on their ability to do their job and the nature of the employers business. 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. However, alterations should not be made to the extent that the report is no longer the product of the investigating manager. Case law confirms that refusing a choice of a companion for a disciplinary investigation can be a breach of the implied term of trust and confidence. The EAT held that the employees secret recording of her disciplinary hearing could be used in evidence in the tribunal. However, cases have also gone the other way. Workers may also alter their choice of companion if they wish. In cases involving informants, careful notes must be taken of the disciplinary hearing. The right to be accompanied applies to meetings where a formal warning may be issued, or some other disciplinary action taken (such as suspension without pay or dismissal). Your employer should have a written grievance procedure that tells you what to do and what happens at each stage of the process. The last case confirmed a shift in the law. However, employers should review disciplinary and grievance procedures to check they do not contradict its provisions. 2 Employee Grievance Definition 3 Causes of Grievance 3.1 Inadequate Wages and Bonus She had previously lodged an internal appeal against the issue of the final warning but that hearing had been adjourned for organisational reasons and never rescheduled. When would an employee raise a grievance? Employees must be treated fairly throughout any appeal process, which must follow both any internal disciplinary policy and the Acas code of practice on disciplinary and grievance procedures. Handling employees' grievances at work - setting up a grievance procedure, holding a grievance hearing and managing appeals The EAT concluded that HR had gone beyond advising on issues of procedure and appropriate sanctions which was the proper extent of its involvement. In one case, an employee was dismissed for breaching the employers alcohol policy because he had consumed alcohol before using a company van for personal use. A key factor in the case was that NHS doctors are contractually entitled to be represented by a qualified lawyer at disciplinary hearings started on the grounds of capability or conduct (, Kulkarni v Milton Keynes Hospital NHS Trust and Secretary of State for Health, 2009, Allowing an employee to be accompanied by a lawyer is complex and will depend on each individual set of facts. Dismissal will not always be considered to be fair and fall within the band of reasonable responses because there has been gross misconduct. Employers should follow their disciplinary procedures to the letter. 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 (YMCA Training v Stewart, 2007). 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. The EAT said a disciplinary process can be fair overall where the appeal process is thorough and reasonable. This would be unfair and a breach of the Acas Code of Practice on Disciplinary and Grievance Procedures. 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 (, The employer should supply enough information so that the employee knows what the allegations against them are. Try to resolve the issue informally If an employee is unhappy about some aspect of their employment, they should raise their concern, problem or complaint with their line manager, who should listen to the employee and attempt to resolve the grievance through informal means in the first instance. If your workplace does not have a formal procedure, you should follow the Acas Code. 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. the non-renewal of fixed-term contracts on their expiry. Acas has also published detailed non-statutory guidance on handling workplace disciplinary and grievance issues which emphasises the importance of written notification of disciplinary matters and grievances, meetings and appeals. Employee Grievances: 8-Steps To Handle Them Most Effectively , the claimant was a deputy ward nurse manager in a ward for patients with mental health problems. Compensation for breach of the right to be accompanied is normally capped at two weeks pay. All employees were found to have committed gross misconduct but, the expired warning, only the claimant was dismissed. There is still a breach of the rules if a companion is. Other relevant issues will include the seniority of the employee, any effect the conviction has on their ability to do their job and the nature of the employers business. ), 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 conduct must be of relevant to the job in question. Following the involvement of the HR department in a disciplinary procedure that would have resulted in a final written warning, the outcome of that procedure changed to dismissal for gross misconduct. If the employer does not follow a contractual appeals procedure, it may be in breach of contract. You can change your cookie settings at any time. the Acas code. 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. In one case, an employer fairly dismissed an employee for a fight at the end of a Christmas party (. Employers should always include a 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). The employer does not have to allow the companion to answer questions on behalf of the employee. The employee and their companion are also free to take notes during the hearing. HR may also give assistance to the investigator to ensure the report is clear and that all matters have been addressed. The employer only interfered with the choice. Handling an employee grievance, 5 key actions - The Legal Partners In, West London Mental Health Trust v Chhabra (2014). The Acas code of practice on disciplinary and grievance procedures, Case law has demonstrated how this can work in practice. An employer's grievance procedure should reflect a healthy working environment, one that encourages and supports fair treatment. An investigation should be looked at in its entirety when assessing the question of reasonableness. Hold the official meeting: 5. In fact, it is almost always. It is possible that the grievance may be resolved during the course of the meeting but, if not, the employer should tell the employee when they might reasonably expect a response and confirm the outcome of the meeting in writing.