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Discipline and grievance1. Do we have to have written disciplinary rules? 2. What should we include in our disciplinary procedure? 3. How should we categorise disciplinary offences? 4. How do we go about drawing up a disciplinary procedure? 5. How many warnings do we need to give an employee? 6. How do we ensure that our disciplinary procedure does not lead to any legal problems? 7. What offences justify immediate dismissal? 8. Do we need a formal grievance procedure? 9. What kind of problems are likely to be raised as grievances? 10. What are the key elements of an effective grievance procedure? 12. How do we introduce new disciplinary rules? 13. What do we do if an employee claims a rule is unreasonable? 14. What do we do if an employee claims not to have known the rules? 15. Do we have to apply the same rules consistently to all employees? 16. What do we do if an employee breaks a rule - but claims that 'everyone does it'? 17. What do we do if there are extenuating circumstances for a disciplinary offence? 18. What should we do if an ex-employee claims to have been unfairly dismissed? 19. What do we do if an employee continually finds excuses to avoid disciplinary hearings? 20. What do we do if we think that an employee is guilty of gross misconduct, but we cannot prove it? 1. Do we have to have written disciplinary rules? " details of the disciplinary (and grievance) procedures that apply
to employees, or an indication of where employees can find and read them;
and Your disciplinary and grievance procedures must be equivalent to, or better than, the procedures now laid down by statute. The statutory requirement, in any disciplinary matter which is likely to give rise to anything other than a warning or a suspension on full pay, is a three-stage procedure: " the issue must be set out in writing; It is advisable to apply the new procedures even if you expect the disciplinary matter to result in no more than a warning. And they must certainly be applied to all dismissals, whether or not they are for disciplinary reasons. So if you are planning dismissals for any reason, seek advice to check you are not in breach of the new procedures. Where an employee is dismissed for gross misconduct, the employer is in most cases required to use the three-stage procedure. But in a few cases (likely to be very few in practice) it may be acceptable to use a 'modified' two-stage procedure: " the issue is set out in writing, with an indication of why the
employee is believed to be responsible for it; There are circumstances in which employers may be exempted from the need to follow the statutory procedures, including: " where the organisation is going out of business; The three-stage procedures (there is also a three-stage procedure for grievances) are designed to check the flow of cases to the Employment Tribunal. If you fail to use them in a disciplinary case where they are required, however, or you use them improperly (for example, by producing a statement which is inaccurate or incomplete), the employee involved can complain to the Employment Tribunal and you risk an automatic finding in their favour, and an award against you which could be between 10 and 50 per cent higher than it would otherwise be. Acas has produced a Code of Conduct (see www.acas.org.uk/publications/pdf/CP01.pdf),
and a handbook (www.acas.org.uk/publications/H02.html#1b) to guide you
through the requirements. The web of requirements and exceptions, however,
is complex, and the consequences of getting it wrong are serious. So if
you are planning to overhaul (or introduce) disciplinary procedures, consider
taking legal advice. 2. What disciplinary offences should we include? The procedure should let employees know how you will deal with disciplinary matters, and in addition to existing rules must incorporate provisions equivalent to (or better than) the statutory procedures brought in from 1 October 2004 (see question one). As previously, you must ensure that any disciplinary offence will be properly investigated, that employees will be given an opportunity to state their case before any disciplinary action is taken, that they can exercise their right to be accompanied by a work colleague/trade union representative and that they can exercise their right to appeal against any disciplinary action taken against them. You should set out some examples of conduct which would result in disciplinary action. It would be a good idea to cover rules relating to work and work performance - for example timekeeping, absenteeism, negligence, sub-standard work, and disregard of health and safety requirements. In addition you would need to cover conduct more generally - for example theft, fraud, offensive behaviour (such as harassment, abuse and violence) and inappropriate behaviour (such as drinking, drug taking or smoking in prohibited areas). Depending on the nature of your business, you might need to identify other forms of misconduct. For example, you might need specifically to state that it will be misconduct to breach the employer's rules on how employees use computers and the Internet (to protect the business against viruses and legal risks). Do not try to be too prescriptive, or people might simply take it as a challenge to beat the system. Moreover, you need flexibility to cover new situations. Give examples of the rules, but make sure they are clearly indicated as examples. 3. How should we categorise disciplinary offences? There is a big difference between poor timekeeping and selling the company's secrets or stealing its computers. You could classify some offences (for example, poor timekeeping, smoking in prohibited areas, less serious breaches of health and safety rules) as misconduct, and some (for example, violence, drunkenness, sexual harassment) as gross misconduct which merits instant dismissal - which, however, must also be implemented through the correct procedures (see Gross Misconduct). You might also want to include another category for repeated misconduct (for example, persistent poor timekeeping). 4. How do we go about drawing up a disciplinary procedure? It is advisable to get it done by specialist employment lawyers, particularly in view of the recent changes in the law (see question one). However, you can find the crucial elements set out in the new draft of the Acas Code of Practice (see question one). In essence: · the procedure must be set out in writing; 5. How many warnings do we need to give an employee? Your procedure could follow four steps: verbal warning; written warning; final written warning; and dismissal. Each step will involve a disciplinary hearing. It is important that you have the flexibility to give a penalty which is appropriate in the circumstances. Within the minimum requirements imposed by new legislation (see question one), reserve the right to enter the procedure at any stage depending on the severity of the offence. For example, in the case of gross misconduct you would want to move straight to dismissal (after having followed the required procedures). 6. How do we ensure that our disciplinary procedure does not lead to any legal problems? Assuming that you have already incorporated the minimum procedural requirements (see question one), the key is to be reasonable, fair and consistent. If, for example, an employee made a claim against you, an Employment Tribunal would check whether: · the rules were reasonable; The new procedures have not altered or changed the existing principles
of fairness or reasonableness. 7. What offences justify immediate dismissal? Immediate dismissal will only be justified for the most serious offences - for example, theft, taking bribes, or sexual harassment - which constitute gross misconduct. In cases of gross misconduct, once you have concluded the appropriate disciplinary procedure, you can dismiss the employee without notice. Be careful. The fact that you consider an offence to be gross misconduct does not mean that an Employment Tribunal will agree with you. The Tribunal will decide whether your response falls within the band of reasonable responses open to an employer. If it falls inside the band, it is fair; if it falls outside the band, it is unfair. 8. Do we need a formal grievance procedure? Yes. From October 2004 you have been required by law to have a three-stage procedure for grievances, as well as for disciplinary offences (see question one). In practice a grievance often precedes a resignation and a possible claim
for discrimination or constructive dismissal, and using the procedures
may actually prevent tribunal claims. You now risk an award in favour
of the employee if you fail to apply the new statutory procedures when
a grievance is brought to your attention. Employees, however, will not
(except in very limited circumstances) be able to claim constructive dismissal
before the Employment Tribunal, unless they have first used the statutory
grievance procedure. 9. What kind of problems are likely to be raised as grievances? It will vary from business to business, and could cover anything from arguments over who washes up the tea mugs to resentment over favouritism or poor management. But changes in working practices, terms and conditions (including pay), and problems over personality clashes are common. It is important not to ignore or dismiss grievances, no matter how trivial
they may seem. Not only can they affect productivity and morale, but you
could now risk serious legal consequences if you fail to do anything about
them (see question eight). 10. What are the key elements of an effective grievance procedure? It is important to set out the grievance procedure clearly, and ensure that it is universally available. Make sure that employees know who to approach with any grievance. Typically,
a grievance is initially taken to the immediate supervisor. The grievance
can then, if necessary, be taken further by putting it in writing to a
more senior manager - who must arrange a face-to-face meeting to discuss
it. If that fails to resolve the problem, a final decision is taken at
the highest level. Set a deadline (say seven days) for responding to complaints at each
stage, but allow yourself some flexibility. You must allow (and should
encourage) employees to bring a colleague or union representative to any
meetings at which grievances are being discussed. That said, grievances
should be kept as confidential as possible. 11. Should we make adherence to the disciplinary rules a condition of employment, and include them in the contract of employment? You are required by law to refer in your terms and conditions to your disciplinary rules and your disciplinary and grievance procedures, but you do not have to make your disciplinary rules and procedures themselves part of your terms and conditions. If you did, you could find yourself in breach of contract if you failed to observe some details of those rules and procedures. 12. How do we introduce new disciplinary rules? Preferably by consent. If your rules are seen to be sensible and necessary to the success of the business, they are likely to be observed anyway; but if employees have had a chance to discuss the reasons for them and the way in which they will work in practice, they are much more likely to buy into them - and much less likely to condone other employees breaching them. You do not need consent, however, for the statutory rules to apply. 13. What do we do if an employee claims a rule is unreasonable? Consider carefully what he (or she) has to say. If you insist on him observing the rule, and he insists on flouting it, the matter could eventually end up in front of an Employment Tribunal. In that case the extent to which you have been reasonable in applying the rule in the first place, and then in responding to any challenge, will be critical to the outcome. 14. What do we do if an employee claims not to have known the rules? Investigate. It may be unreasonable to expect employees to observe rules they do not know about. But if the rule was well publicised, and/or the employee has been picked up before for failing to observe it, he will not be able to rely on ignorance. 15. Do we have to apply the same rules consistently to all employees? It is important to be consistent, but it is even more important to be reasonable. You should investigate the circumstances in each case, and also consider any mitigating factors. It is quite possible that an offence (for example, drunkenness) that would merit instant dismissal in one employee (an employee who comes in fighting drunk) would merely merit a reprimand in another (an employee with long service, who comes in somewhat merry after celebrating a family event). If you do end up treating different employees differently for the same offence, however, you do need to be able to explain and justify exactly why. Otherwise, you risk a discrimination claim. 16. What do we do if an employee breaks a rule - but claims that 'everyone does it'? Is he right? If you have been turning a blind eye to other employees breaking the rule, it will probably be unfair to make an example of this employee. If the rule is important, you will have to re-emphasize it, giving everyone fair warning that failure to observe it will be penalised in future. 17. What do we do if there are extenuating circumstances for a disciplinary offence? Take them into account in deciding what penalties to apply. Keep good records of the extent to which you are doing so. It is not necessarily reasonable to apply the same penalty to the same offence in different circumstances (see question 15), but if you are going to treat employees differently you need to be able to explain why. 18. What should we do if an ex-employee claims to have been unfairly dismissed? Get immediate advice from specialist employment lawyers. They will need to respond within 28 days of the Employment Tribunal sending you the ET1. They can assess the merits of the case, and if they think your ex-employee is simply trying it on, apply to have the case thrown out. If it is more serious than that, they may advise you to see whether you can conciliate through Acas. 19. What do we do if an employee continually finds excuses to avoid disciplinary hearings? Be reasonable. If the excuses are genuine - for example, certified sickness
- be patient. If there is no good excuse, consider holding the disciplinary
hearing in the employee's absence - but warn them that you are going to
do so in advance. Employees who take matters to an Employment Tribunal,
following disciplinary action, risk finding their awards (if any) substantially
reduced (by between 10 and 50 %), if they have not followed through on
the full appeals procedure beforehand. 20. What do we do if we think that an employee is guilty of gross misconduct, but we cannot prove it? Investigate thoroughly. If you take disciplinary action and are sued for unfair dismissal as a consequence, you have a defence if you can prove that you investigated thoroughly, and acted in a reasonable belief of guilt on the basis of that investigation. You will not be expected to prove the employee's guilt beyond reasonable doubt. If a criminal offence is involved (for example, theft) consider calling in the police. Take legal advice. Although these FAQs highlight some key issues relating to employment law, it should not be considered comprehensive and is not a substitute for seeking professional advice on a specific issue. Disclaimer Although we have made every effort to ensure that the information contained in these FAQs is accurate, Business Hotline Publications and the named experts disclaim any liability for any errors or omissions. © Business Hotline Publications Ltd
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