01 Dec 2022
Raising a grievance or being subjected to a disciplinary process can be a stressful process and they are not always easy to navigate. We hope you find some of these do’s and don’ts useful, should you ever have to experience either of these processes.
In summary, it is important that grievance and disciplinary procedures are clear and are adhered to properly by employers when instigated. This ensures that employees are treated fairly and can help minimize the distress that can arise from issues in the workplace. A proper and fair process can also help resolve disputes in the workplace and avoid them escalating to an Employment Tribunal.
When it comes to grievance procedures, it is important that employees understand how to raise their concerns and how they can expect them to be dealt with.
Disciplinaries
A disciplinary procedure is a formal way for an employer to deal with an employee’s misconduct or possibly unsatisfactory performance. The term “misconduct” covers a range of issues but some common cases are continual lateness, inappropriate behaviour in the workplace, a failure to follow a reasonable management instruction or bullying. Capability refers to the ability of an employee to work to a satisfactory standard. Often these issues are addressed by performance plans, as opposed to disciplinary procedures, but it depends on the reasons for poor performance.
The ACAS Code of Practice on Disciplinary and Grievance Procedures, contains guidance on what a disciplinary procedure should look like.
The Dos and Don’ts of Disciplinary Procedures!
Make sure you know the case you are answering: Before embarking on a formal disciplinary procedure, the employee must know the allegations he or she is facing and those allegations must be framed correctly. If an employer later dismisses for something that wasn’t raised at the outset with the employee, dismissal could be unfair.
Make sure your employer provides you with all the facts: There is a duty on your employer to collect all the available evidence and determine what has happened. This would usually include an opportunity for an employee to put forward his or her answers to the allegations made in an investigation meeting, disciplinary meeting and/or in writing.
Don’t hold anything back: it is important that an employee presents all information and evidence that he or she wants to rely upon. When a Tribunal makes its decision about the fairness of a dismissal, it can only take into account the evidence the employer had at the time it made its decision. So, employees shouldn’t hold anything back!
Do exercise your right to be accompanied in the disciplinary meeting: an employee has a statutory right to be accompanied at a disciplinary hearing by a fellow worker, a trade union representative or a trade union official. The employee has a right to present whomever they choose, provided they meet these requirements (Toal v GB Oils Ltd [2013]). Having a witness present at a meeting is helpful, if only to take notes of what was discussed.
Do ensure your companion is allowed to participate in the meeting: During the meeting an employer should allow the companion to address the hearing, put and sum up the employee’s case.
Do exercise the right to appeal: if the disciplinary hearing doesn’t go the way the employee hoped, he or she has a right to appeal. The appeal should be dealt with impartially and the employee has a right to be accompanied. All points in support of an appeal should be made, pointing out failures in procedure and any defects in the disciplinary decision, as well as emphasizing any mitigating circumstances that should have been taken into account.
Don’t forget to assert your rights under the Equality Act 2010 if applicable: If the employee has a protected characteristic that is relevant to the disciplinary matters raised, it is important that any allegations of discrimination in the process are raised, both in the procedure itself and as a grievance.
Do ensure your employer keeps clear and adequate records of the process: This is important if the dispute escalates to Employment Tribunal. If an employee feels they might need to challenge the disciplinary decision, it might be necessary to make a GDPR request.
Grievances
A grievance procedure is an official process for dealing with a complaint raised by an employee with their employer about work related issues. This can include bullying by a colleague, discrimination, unfair treatment by a manager or a failure to put in place proper health and safety policies. A grievance should generally be brought after an employee has tried to resolve their complaint informally.
The Dos and Don’ts of Grievance Procedures!
Make sure you are aware of your employer’s grievance procedure and that you follow it: By law employers must set out their grievance procedure and share it in writing with all employees. This must include who employees should contact about a grievance and how they can do this. It is important that such procedures are followed, not only to ensure the grievance is handled properly but also to avoid a reduction to compensation if Tribunal proceedings need to be lodged in future.
Do attempt to resolve the issues informally first: Both parties involved in the raising of a grievance should first see if it is possible to solve the issues on an informal basis. If that is not possible then the formal grievance procedure is the next step.
Don’t use grievance procedures tactically or vexatiously: There have been cases where employees have been fairly dismissed for raising numerous, unjustified grievances and/or have abused the internal grievance procedures.
Set out your grievance clearly and in writing: For employees raising a grievance it is important that they do this in writing and set out their complaints clearly and in sufficient detail. This will facilitate an investigation into their complaints. They should also provide any evidence they have to support their grievance.
Make sure your employer follows grievance procedures and the ACAS Code of Practice as a minimum: When investigating grievances, employers should take a fair and consistent approach and deal with complaints within a reasonable timeframe. If they fail to do this and your issue is not resolved, it could give rise to a Tribunal claim.
Don’t accept a lack of independence in the grievance process: Generally, the person investigating the grievance should be different from the person deciding the outcome to it, so as to ensure an impartial decision. The person dealing with the appeal should also be different. A failure to provide an impartial grievance and appeal procedure could give rise to a Tribunal claim.
Make sure you attend all grievance hearings: An employer must give reasonable notice of any grievance meetings or hearings and the employee should participate. Having the opportunity to fully discuss your concerns is key to a fair procedure.
Do familiarize yourself with the ACAS Code of Practice (link found here): Although this isn’t legally binding on employers or employees, in cases where the Code hasn’t been followed then an Employment Tribunal can reduce or increase compensation awarded by up to 25%.
Don’t think appeal processes impact on Employment Tribunal time limits: There are only very short timescales within which to act and claims in a Tribunal must generally be actioned within 3 months (less a day) of the date the alleged unlawful act occurred, or in cases of dismissal, of the date employment ends. The precise time limit will depend on the circumstances of the case, but time limits are not generally extended by the use of disciplinary or grievance appeal processes.
We hope you found this information useful. However, the information contained within this article should not be used as a substitute for taking legal advice.