Our grievance and disciplinary solicitors provide bespoke, practical advice to businesses and organisations of all sizes at a local, regional and national level. We will provide you, as an employer with the necessary support you need should a grievance or disciplinary matter raise its head.
What is the difference between a disciplinary procedure and a grievance procedure?
Disciplinary procedures are instigated by the employer. They are used to address concerns over an employee’s conduct or performance. Grievance procedures are instigated by the employee and the process attempts to investigate and resolve concerns, problems, or complaints that an employee raises with their employer.
Sometimes these procedures can overlap when an employee raises a grievance during a disciplinary process. An employer will have to decide whether it is appropriate to deal with the processes concurrently or whether the disciplinary matter should be suspended pending the outcome of the grievance.
What is the Acas Code of Practice for disciplinary and grievance procedures?
The Acas Code of Practice for disciplinary and grievance procedures (“Acas Code”) is described by Acas as “the minimum an employer should follow for handling these issues at work”. The Code sets out guidance for employers, which should be followed.
Failure to follow any part of the Acas Code does not of itself make an employer liable to proceedings. However, employment tribunals must take the Code into account where relevant when considering whether an employer has acted reasonably or not in taking the action it has or, in some cases, not taking action.
It is also relevant to how much a tribunal could award an employee in the event they are successful in their claim.
All employers should have a grievance and disciplinary procedure in place, not only in order to comply with their obligations under section 3 of the Employment Rights Act 1996, but also so both employees and employers understand the process that will be followed.
What steps should you take as an employer when dealing with a disciplinary matter?
The exact process followed may differ depending on your individual policies and the severity of the performance issues or misconduct. It may be appropriate to deal with some disciplinary matters informally, particularly if the conduct or performance is not serious.
If, as an employer, you cannot resolve the matter informally or the issue is too serious, it will go through the following stages:
Investigation/establishing the facts
Investigations should be carried out without unreasonable delay. The amount of investigation required will vary enormously depending on the individual circumstances of the case. This could include discussing the issues with other employees or trying to find documentary evidence. This evidence gathered will aid the employer in making a decision on whether to commence disciplinary the disciplinary process further and invite the individual to a disciplinary hearing.
At this stage, the employee does not need to know about the investigation, although it can be useful to ask their perspective at this stage through an investigatory meeting. Whether it would be appropriate to hold an investigatory meeting with the employee will depend on the circumstances of the investigation.
Informing the employee
If the employer does decide, following an investigation, that there is sufficient evidence to warrant a disciplinary hearing to consider whether a disciplinary sanction is warranted then they must inform the employee of this in writing.
This notification should include information about the employer's concerns, the possible outcome of the disciplinary, and it is best practice to include copies of any written evidence to allow the employee to prepare their response to the allegations. A failure to allow the employee to consider the evidence against them prior to any disciplinary hearing is likely to be unfair.
The employee should be informed of the location and time of the disciplinary meeting, which should be held without unreasonable delay but allowing time for the employee to prepare.
Allowing the employee the right to be accompanied
Employees should be informed of their statutory right to be accompanied to a disciplinary meeting by a fellow worker, a trade union representative, or an official employed by a trade union. The employer’s disciplinary procedure may also provide that the employee can be accompanied by people other than these.
Deciding on appropriate action
There are a range of options available for employers if they are satisfied that the concerns against the employee are well founded. The appropriateness of an action will differ depending on the nature and severity of the concerns. Actions tend to range from a written warning to dismissal without notice.
Opportunity to appeal
Employees should be informed of their right to appeal the decision. This is usually communicated to the employee in the disciplinary outcome letter.
Appeals should be heard without unreasonable delay, impartially and, ideally, by a person who has not been involved in any earlier stage of the disciplinary procedure. Employees will have the right to be accompanied to the appeal hearing.
What steps should you take as an employer when dealing with a grievance?
It is likely that when an employee raises concerns to their employer that they will state that they are raising a grievance. That being said, if they do not, the employer should consider whether it still constitutes a grievance. If the concerns are a grievance the employer should undertake the following:
Hold a meeting to discuss the grievance
Employers should invite the employee to a meeting, without unreasonable delay, so that they can discuss their concerns.
Allow the employee to be accompanied
Your employees do have a statutory right to be accompanied to a grievance meeting by a fellow worker, a trade union representative, or an official employed by a trade union.
Decide appropriate action
It may be necessary following this meeting to commence investigations into the concerns of the employee. Following any necessary investigations the employer will be in a position to confirm whether they are taking any action.
The decision should be clearly communicated to the employee and the employee should be given the right to appeal the grievance decision.
How can we assist your business with disciplinaries or grievances?
Most employers are likely to experience a grievance or disciplinary procedure at some point. Following an unfair process is more likely to result in a tribunal claim than when a fair procedure is followed. Whilst sometimes employment claims cannot be prevented regardless of the process followed, following a fair process is more likely to result in a positive outcome at a tribunal and provide a strong defence to any claims.
Even if you feel confident dealing with grievance and/or disciplinary matters, they are not always straightforward, and as an employer, you may find yourself dealing with potentially difficult or complex issues. Our Employment solicitors can provide expert advice throughout the process.
It is also important to have well-drafted procedures in place. Employers should also consider in-house training for those members of staff who are likely to be involved in those processes.
Key Contact
Helen Watson
Partner | Head of Employment Law
Helen has been Head of the Employment Team at Aaron and Partners LLP for over 16 years and is an experienced Tribunal Advocate, Accredited Mediator and Workplace Investigator. Helen is also a Chartered Director and Executive Boardroom Coach.
