Our Employment Law Advisers often receive calls from anxious employers about how to handle disciplinary and grievance issues.
Rightly so, because not following the correct procedure can land you in an Employment Tribunal. With charges for tribunals now unlawful, there is no barrier to a disgruntled employee taking you to an employment tribunal and potentially costing you thousands.
The ACAS Code of Practice on Disciplinary and Grievance Procedure lays down the key principles for handling these situations in the workplace.
- Try and resolve the issue informally;
- The rules should be in writing and be specific, clear and accessible;
- Any issues that arise should be brought up and managed promptly. Meetings, decisions or confirmation of decisions should not be unreasonably delayed;
- Both employees and employers should act in a consistent way;
- Employers need to conduct any necessary investigation to ascertain the facts;
- Employers need to tell their employees about the problem and give them the chance to put their case in response before taking action;
- Employees have the right to be accompanied by a colleague or trade union representative to formal grievance or disciplinary hearings; and
- Employees have the right to appeal any formal decisions that have been made.
We have produced step-by-step guidance of the grievance and disciplinary process, which are useful tools when you are facing the difficult task of dealing with complaints or alleged misconduct.
Free Download: Definitive Guide to Misconduct & Disciplinary
Discover how to handle the disciplinary process like an HR expert.
There are a number of common breaches of the ACAS Code committed by employers, including:
The same person carrying out the whole disciplinary process
Different individuals should carry out the investigation, disciplinary hearing and appeal.
Not looking at the credibility of the evidence
The person in charge of the investigation needs to make sure that they consider evidence that both supports and challenges the allegations of misconduct. This involves looking at each piece of evidence and considering whether there are any doubts about its credibility.
Not giving evidence to the employee
Employers need to provide the employees with written copies of evidence and relevant witness statements before a disciplinary hearing.
Not allowing the employee to be accompanied
Employees do not have a legal right to be accompanied in an investigation meeting. However, they do have the right to be accompanied to a formal disciplinary hearing that could lead to a formal warning being given or other types of disciplinary action, or the confirmation of disciplinary action.
Failing to inform the employee of the potential consequences of the disciplinary action
If you give an employee a written warning, you should make it clear what the consequences are if they commit further acts of misconduct (i.e. final written warning or dismissal).
Dismissing without having given prior warnings
Generally, employers should not dismiss an employee for one single act of misconduct unless it is regarded as an act of gross misconduct. If the act is considered to be gross misconduct, the employee can be dismissed without warnings, notice or payment in lieu of notice.
Not dealing with grievances
You may receive a grievance during the disciplinary process. It may be appropriate for the disciplinary process to be temporarily suspended whilst the grievance is concluded. Alternatively, it may be appropriate to deal with both concurrently or even dealing with some of the issues at the disciplinary hearing when the issues raised as a grievance are effectively the employee’s defence or the subject matter of the disciplinary and grievance are in some way connected.
Effect of non-compliance
Although it is not legally binding and you are not breaking the law if you breach its provisions, it is still important to follow the ACAS guidance. If you do face a claim, an Employment Tribunal will consider whether the ACAS Code of Practice has been followed.
The ACAS Code of Practice recognises that not all employers will be able to follow every single step that the Code lays down, but if it is found that the employer has unreasonably not followed the Code of Practice, the compensatory award may be increased by up to 25%.
Equally, if an employee is at fault, for example, they do not turn up to a disciplinary hearing and have no justification, their compensation may be reduced by up to 25%.
