Grievance and disciplinary policies are a legal requirement for all companies, no matter how small. You must set out your disciplinary and dismissal rules and grievance procedures in a written document, and make sure all employees have access to it.
Furthermore, since last October there are new regulations that make sexual harassment – and harassment on the grounds of sex – explicitly unlawful in employment or vocational training. All forms of harassment, victimisation and bullying (and they can be subtle and varied) have the potential to cause your business massive problems. Writing a grievance and disciplinary policy so employees are aware of the standards of behaviour you expect, with rules to specify clearly what types of behaviour will qualify as gross misconduct can save your business from costly industrial tribunals. The policy need not be lengthy or complicated, and you can have it checked by Acas if you wish.
From October 2004, new statutory discipline and dismissal and grievance procedures were introduced. The procedure can be part of the written statement you give employees when they start working for you, or can be a separate document, perhaps part of a staff handbook or put on a notice board.
The legal position on discipline and dismissal procedure
There is a clear three-step discipline and dismissal procedure. In step one you must give a written statement to the employee setting out why you have decided to take disciplinary action.
In step two you must meet the employee, who has the right to be accompanied by his or her colleague or union representative. You should state your case, let the employee respond and then, after the meeting, give the employee your decision and make sure the employee knows they may appeal.
In step three the employee may appeal against your decision and choose to be accompanied at the appeal meeting. Ideally this should be heard by a different or more senior manager. The employee needs to be informed of the decision. The employee must appeal to complete the statutory procedure.
When should I follow the three-step discipline and dismissal procedure?
The three-step procedure is for use if you are thinking about dismissal, suspension without pay or demotion, and is not for initial minor offences. For such minor offences such as persistent lateness (and which have not improved after an informal chat) you should give the employee a first written warning, and take it from there (i.e. move onto the final written warning if there is no improvement by a certain date). Obviously you would only use the three-step procedure if things do not improve, or if they employee has allegedly committed an act of gross misconduct. In a very small number of gross misconduct cases where an employee’s conduct would justify summary dismissal this can be modified to a two step procedure, but take advice and tread carefully.
If you do not go through the three steps outlined above, dismissals will probably be seen as unfair. Even if you follow the three steps it can still be seen as unfair – if for example the offence required a final warning and you used the three step procedure to dismiss the employee. The disciplinary action needs to be appropriate for the alleged offence.
Remember that if the company does not complete the statutory dismissal or disciplinary procedures an employee may be able to claim automatic unfair dismissal (although compensation will usually be reduced if failure to complete the procedure is the employee’s fault).
Are there any exemptions from the statutory dismissal or disciplinary procedures?
The regulations do not apply in the case of collective redundancies, strike action, where a business ceases to function, factors beyond the control of either party, where the employee cannot legally continue working or either party adopts violent or abusive behaviour. Harassment can also be accepted as an exemption and there are others so it is important to check with Acas on the current position.
How can I protect my company from unfair dismissal complaints?
Company rules depend on the nature of the business, but can cover gross misconduct, timekeeping, absence, holidays, health and safety, standards of work, personal appearance, use of company facilities, smoking and non discrimination. Make sure your employees know the rules and standards you set. Most problems can be sorted by informal discussion, but a formal disciplinary procedure will encourage good standards of behaviour and provide a fair method of dealing with problems. In addition it reminds managers and supervisors how disciplinary matters are to be dealt with, minimise disagreements and reduce the need for dismissals.
Make sure your written disciplinary and grievance policies are either written into each employee’s written statement, or at the very least kept as a separate document for all to see and understand.
Your disciplinary procedure should tailor to your company needs. But it should be:
- in writing
- not discriminate on grounds of race, sex or disability, sexual orientation, religion or belief
- specify to whom it applies
- explain the penalties
- deal with matters quickly
- give workers the right to be accompanied
- give employees the right to put their side of the case
- specify who has the authority to take disciplinary actions
- ensure that action is not taken without careful investigation
- provide a right to appeal
Check the Acas website for examples of wording your policy and adapt accordingly. Once you have written it make sure all employees are familiar with it and have access to a copy. Managers and supervisors need to be fully trained in its operation.
It is vital to remember that before taking disciplinary action using the procedure you are absolutely certain;
The matter cannot be resolved through informal counselling if;
- you have investigated the matter fully
- the individual is told that he or she will be interviewed by the appropriate manager/supervisor and has the right to be represented or accompanied by another employee or trade union official of their choice.
If you get the disciplinary interview stage you must make sure:
- the employee concerned knows the details of the allegation
- he or she has the opportunity to put his or her side of the matter
- any disciplinary measure is appropriate to the circumstances
If you feel you must give a warning, it should tell the employee;
- the level of improvement required
- the date by which it is to be achieved
- what will happen if it not
- how to appeal
The grievance procedure
The aim is to settle grievances fairly and as quickly as possible and although most problems are resolved informally, legally you must have a written procedure for staff to follow. Your grievance procedure should be familiar to all employees, and they need to have access to a copy.
The procedure should be a simple written document. It should outline how and with whom to raise the issue, whom next to apply to if not satisfied, the time limits to each stage and the right to be represented.
To activate the grievance procedure the employee has to set out in writing his or her grievance with the employer. Then the employer arranges a meeting to discuss the grievance. The employee has the right to be accompanied and at the end of the meeting will be informed of the decision and the employee’s right of appeal. The next step is for the employee to tell the employee if he or she wishes to appeal and he or she must do so to complete the statutory procedure. If the appeal is requested a further meeting is arranged, if possible with a more senior or different manager. The employee has the right to be accompanied and after the meeting the employee is told of the employer’s decision. Everyone needs to know who to appeal to and the name or job title should be noted in the written statement.
Consult the Acas Code of Practice on disciplinary and grievance procedures for examples of such policies, which can be amended to suit your business needs. However it is advisable to seek legal advice as every company is different. Contact www.acas.org.uk
