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URN No: 07/853
Foreword
Disciplinary and dismissal procedures
Communicating your disciplinary and grievance procedures
Informal warning
Formal warning
Standard procedure
The written statement
The hearing
The appeal meeting
Getting the most out of the meetings
Dealing with delays
Instant dismissal
The written statement
The appeal meeting
Employment tribunals
The law on dismissal
When procedures do not apply
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Grievance procedures
Standard procedure
The written statement
The hearing
The appeal meeting
Modified procedure
When procedures do not apply
Sample letters
Letter 1 : to be sent by the employer, setting out the reasons for the proposed disciplinary action or dismissal and arranging the hearing
Letter 2 : to be sent by the employer after the hearing
Letter 3: Notice of appeal meeting
Letter 4: Notice of result of appeal meeting
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Foreword
On 1 October 2004 the Employment Act 2002 (Dispute Resolution) Regulations 2004 came into force. They lay down disciplinary, dismissal and grievance procedures that provide a framework for discussing problems at work. This guide explains the procedures. It is primarily intended for managers in small firms. Separate guidance will be available for employees from www.dti.gov.uk/employment/Resolving_disputes/index.html
This document gives general guidance only. It has no legal force and cannot cover every point and situation. If you would like advice on your particular situation, please see below for Acas contact details.
It is important to note that the Regulations aim to set a minimum standard and are not intended to replace pre-existing best practice and the procedures they introduced should complement your existing disciplinary and grievance procedures, not replace them. Your disciplinary and grievance procedures must be set out writing (see the following section for more details).
If you need more advice, Acas offers a number of services to help you, from good practice advice on setting up procedures to looking for a resolution if your employee applies to a tribunal. Their website is www.acas.org.uk and they have a helpline on 08457 47 47 47.
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Disciplinary and dismissal procedures
This chapter sets out the steps you need to take when you are considering dismissal or disciplinary action. Generally speaking, your aim should be to resolve the problem whilst keeping the employee on. That may not be possible, but you must follow the procedures set out below. Failure to do so may result in a tribunal case that goes against you.
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Communicating your disciplinary and grievance procedures
Since 1 October 2004, all employers have been required to issue a written document that sets out their disciplinary rules and the new minimum procedures.
This information can either be communicated in the employee’s contract, his or her written particulars of employment or the letter sent when offering the employee a job. Alternatively, you could set out the details in a statement of change.
Guidance on producing this statement is available from the DTI and Acas. DTI guidance on producing a written statement of employment particulars can be downloaded from www.dti.gov.uk/employment/employment-legislation/employment-guidance/page16367.html or a sample written statement can be obtained from www.dti.gov.uk/employment/employment-legislation/employment-guidance/page16332.html
If you do not issue this statement to your staff, and one of them takes anemployment tribunal case against you and wins, you will be liable for an additional fine of up to 4 weeks’ wages.
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Informal warning
When someone is not performing satisfactorily or is misbehaving at work the first priority should be to help them to improve. Have an informal discussion of the problem with them. Make sure they understand what they are doing wrong and what they have to do to come up to standard. To remind yourself, make a brief note of the date on which the issue was discussed and what action was agreed.
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Formal warning
If the issue isn’t resolved or the matter is very serious, you should tackle the matter more formally. Invite the employee to a meeting and have a formal discussion with him or her. The employee has the right to be accompanied by a colleague or trade union official. (Clarification of the role of the companion at such hearings, made by the new Employment Relations Act 2004, came into force on 1 October 2004 – see www.dti.gov.uk/employment/employment-legislation/era/page21215.html for more details).If you are not satisfied with the employee’s explanation you should write the employee a letter setting out the problem, what you expect him or her to do about it, when you expect to see an improvement and what you will do if there is no improvement. Where the employee’s poor performance or misconduct is sufficiently serious, for example because it is having a harmful effect on the business, it may be appropriate to issue a final written warning.
For example, an employee in a small shop is responsible for unlocking the premises every morning, but arrives unacceptably late. If informal discussions do not resolve the issue, the employer could issue a final written warning, after holding a formal meeting. The final written warning could state that if the employee is late at any time during the next 6 months, he or
she would be subject to dismissal procedures.
A final written warning should give details of and the grounds for the complaint. It should warn the employee that failure to improve or modify behaviour may lead to dismissal, and it should refer to the right of appeal. A tribunal is unlikely to find a dismissal to be fair unless you gave a final written warning (except in cases of gross misconduct).
If the situation still does not improve, and you feel further action against the employee is necessary you should start the standard procedure.
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Standard procedure
The standard three-step disciplinary and dismissal procedures apply to all dismissals except:
Remember that part-time employees must be treated in the same way as full–time ones. You should also use the standard procedure when you are making someone redundant (Except when you are making more than 20 people redundant at one establishment in a period of 90 days when a different statutory regime applies)
Failure to use the standard procedure in such cases may result in you losing a tribunal case.
The three steps are:
i. The written statement.
ii. The hearing
iii. The appeal meeting
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The written statement
You must prepare a statement setting out what the employee has done, or failed to do that may result in disciplinary action or dismissal. In the case of redundancy, retirement on health grounds or the end of a fixed term contract the statement should set out the circumstances which led you to take the decision to end the person’s employment. A copy of this statement must be sent to the employee and you must arrange a meeting to discuss the matter.
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See sample letter 1.
You do not have to put all the details of the employee’s conduct in the written statement. But if you don’t, the details must be explained to him or her before the hearing, so there is time for him or her to consider a response. The law does not allow you only to present this information at the hearing.
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The hearing
When arranging the hearing, bear in mind that:
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The appeal meeting
If the employee wants to appeal he or she must inform you. You should then arrange a meeting to hear the appeal. See sample letter 3. The same rules apply to this meeting as to the hearing. If possible a manager more senior than the manager who held the disciplinary hearing should hold the appeal meeting. If the size of your firm makes this impossible you will need to make an extra effort to deal with the matter impartially. Following the appeal meeting you must inform the employee of your decision, making clear that it is final. See sample letter 4.
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Getting the most out of the meetings
The way you run the meeting could have important implications if the matter subsequently goes to an employment tribunal. Start the meeting by introducing all the people present and ensuring that everyone knows the background to and the purpose of the meeting. Remember that you are aiming to resolve the dispute and keep an open mind, listening carefully to what is said. If you can, have a fellow manager at the meeting who can take notes and discuss the meeting with you afterwards.
Finish the meeting by summarising what has happened and telling everyone when you will give your decision. Leave yourself some time after the meeting to consider what has been said and follow up any new points that came out of the meeting. If
a particularly significant new fact emerges it may be best to adjourn the meeting while you look into it.
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Dealing with delays
If the employee is genuinely unable to attend any meeting you arrange, for example if he or she is ill, you must offer another reasonable date. If you cannot make the meeting, you must offer an alternative date. If the person the employee has chosen to accompany him cannot make the date of the meeting you offer, the employee must propose another date and time which
should be no more than five days later than the original date. If this second meeting is missed, the law considers the procedure to be at an end and you can proceed with the dismissal or disciplinary action without going through any more steps.
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Instant dismissal
It is almost always unfair to dismiss an employee without first making any investigation of the circumstances. However in very rare cases it has been known for tribunals to rule that an instant dismissal was fair because the circumstances made an investigation unnecessary. For example an employee who engaged in serious misconduct in front of witnesses and there was no likely explanation or mitigating circumstances. In these rare circumstances, the Regulations allow an employer to move directly from the written statement to the appeal without having to hold a hearing. So it is a two-step procedure. You must follow these two steps or the dismissal is automatically unfair.
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The written statement
You must prepare a written statement, setting out what the employee has done, or failed to do that resulted in their dismissal. It should also mention that the employee has the right of appeal against this decision. A copy of this statement must be sent to the employee.
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The appeal meeting
If the employee wants to appeal he or she must inform you. You should then arrange a meeting to hear the appeal. See sample letter 3. Following the appeal meeting you must inform the employee of your decision, making clear that it is final. See sample letter 4.
It is best to regard the modified procedure as a safeguard rather than an viable option.
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Employment Tribunals
If the grievance, disciplinary or dismissal procedures are not completed when the case goes to a tribunal the tribunal will decide whether that is the fault of the employee or employer. If it is the fault of the employer the compensation payable will be increased by at least 10 per cent and possibly up to 50 per cent. If it is the employee’s fault the compensation will be decreased in the same way. If there is no award, there is no additional penalty.Be aware that a tribunal can rule that a dismissal is unfair or that a grievance is justified even though you have stuck to the letter of the procedures. The tribunal must be satisfied that you acted reasonably in the circumstances (taking into account the size and resources of your organisation) .
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The law on dismissal
If disciplinary action could end in dismissing an employee, employers must ensure the dismissal is fair. Fairness involves 2 key points:
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PRINCIPLES OF REASONABLE BEHAVIOUR (drawn from the Acas Code of Practice on Disciplinary and Grievance Procedures)
Note that an employee cannot take a case of unfair dismissal against you until he or she has been employed by you for a year or more. There are some important exceptions to this rule. Some dismissals are automatically unfair whenever they occur. In particular you cannot fairly dismiss a woman for becoming pregnant or a trade union official or health and safety officer for
carrying out legitimate duties. For further information see www.dti.gov.uk/files/file34565.pdf
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When procedures do not apply
There are some circumstances where the law recognises it isn’t practical to expect an employer to go through the procedures before dismissing employees or taking disciplinary action. These are:
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Grievance procedures
A grievance is defined as some action that the employer or a colleague has taken or proposes to take which affects him or her, and which the employee considers has been taken for some reason that is not connected with the way he or she is doing the job. Employees should be encouraged to raise these issues informally.This may solve the problem quickly, and protect good
working relations. However, if this informal approach does not work, then the employee must formally raise the grievance. You are required to participate in the following procedure.
Your employee cannot take you to an employment tribunal unless he or she has written to you about the grievance and waited 28 days (although there are some exceptions to this). The 28 day period is to allow you to respond but you should not wait that long if you can help it. If you fail to complete your side of the procedures, any award made in a tribunal case could be
increased by 10 per cent and maybe up to 50 per cent. But if the employee starts the procedures but doesn’t complete them, his or her award could be reduced by 10 per cent and maybe up to 50 per cent. If there is no award, there is no additional penalty.
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Standard procedure
The standard three-step grievance procedure applies to almost all grievances (see the following section for exceptions).
Actions which are part of normal workplace procedures such as warnings and paid suspensions can be the subject of grievance procedures as can behaviour by colleagues. Dismissal, however, cannot be the subject of a grievance – you must deal with this as explained in the section on Disciplinary and dismissal procedures.
There are a few exceptions to the standard procedure (see ‘When the procedures do not apply’)
The three steps are:
1. The written statement
2. The hearing
3. The appeal meeting
The written statement
The employee must set out his/her grievance in writing and send a copy to the employer.
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The hearing
The employer must invite the employee to a hearing to discuss the grievance. You should not delay the hearing unreasonably but give yourself time to look into the background to the grievance and check what action has been taken in similar cases.
The hearing should be at a reasonable time and location and the employee has a duty to attend. The employee has a right to be accompanied by a colleague or union official. (Clarification to the role of the companion at such hearings, made by the new Employment Relations Act 2004, came into force on 1 October 2004 – see www.dti.gov.uk/employment/employment-legislation/era/page21215.html for more details.) If the employee or the companion is disabled you should take all reasonable steps to ensure that they have no problems participating fully in the hearing. (see ‘Getting the most out of meetings’).
After the hearing you must inform the employee of your decision and offer an appeal meeting if the decision goes against him or her.
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The appeal meeting
If the employee is still dissatisfied, he or she should tell the employer that he or she wishes to appeal against the decision or lack of one. You must arrange a meeting to discuss the appeal. If possible a manager more senior than the manager who chaired the grievance meeting should chair the appeal meeting. If the size of your firm makes this impossible you will need to
make an extra effort to deal with the matter impartially. After the meeting you should tell the employee of your decision, making it clear that it is final.
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Modified procedure
In general, the standard grievance procedure will apply even after the employee has left your organisation. However there is a shorter procedure that can be used when the aggrieved employee is no longer working for the employer and either:
- both parties agree in writing that it should apply; or
- it is not reasonably practicable for one or other party to carry out the standard procedure. For example if one of them has left the countryfor an extended period.
The two steps are:
1. The ex-employee sends a written statement of grievance to his former employer
2. The employer writes back to the ex-employee giving his response to the points raised.
When procedures do not apply
Disciplinary or dismissal action taken before 1 October 2004, even if the disciplinary action continued after that date. Nor do they apply where the grievance about which the employee is complaining occurred before 1 October 2004, even if the grievance action continued after that date.
The procedures do not need to be completed if the grievance is of a ‘collective’ nature. The grievance is counted as collective if it is raised by a recognised trade union or a workplace representative on behalf of two or more employees.
The procedures do not apply when one party behaves in such a violent and unreasonable manner that the other party could not be expected to sit down with them and go through the procedures.
Finally there will be circumstances when factors beyond the control of either party mean that it is effectively impossible for the procedure to be gone through, for example if one of the parties concerned leaves the country or becomes seriously ill.
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When procedures overlap
Complications can arise when the employee feels that a disciplinary action is unfair or involves unlawful discrimination. It is very important that you carefully examine the case for any action to make sure that it is firmly based on the conduct or capability of the employee. If the employee is dismissed for any reason, or subjected to some other action on conduct or
capability grounds, and considers that you have acted unlawfully, he or she does not need to raise a separate grievance before being allowed to take you to an employment tribunal. But if the employee believes that disciplinary action, short of dismissal, was not genuinely based on conduct or capability, and/or that it involved unlawful discrimination, he or she would need to start
a grievance procedure before being allowed to take you to tribunal.
In practice this should be less complicated than it looks. If you feel one of your employees deserves to be disciplined or dismissed and you are satisfied that your reasons are sound, then you should start the disciplinary proceedings by giving the employee the written statement and arranging the first meeting. If the employee feels that you are being unfair it is up to him
or her to raise the matter in writing to you. This written statement can then be discussed at the first hearing or the appeal meeting. If the case then goes to a tribunal, the employee will not have disqualified himself or herself on the technical grounds that he or she failed to start a grievance procedure, and you will not have had to arrange two sets of meetings. The important thing is that the matter will have been properly discussed in the workplace before any further action is taken.
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Sample letters
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Letter 1 : to be sent by the employer, setting out the reasons for the proposed disciplinary action or dismissal and arranging the hearing.
Dear……………. Date………………..
I am writing to tell you that ……………. [insert organisation name] is
considering dismissing OR taking disciplinary action [insert proposed action] against you.
This action is being considered with regard to the following circumstances:
………………………………………………………………………………
………………………………………………………………………………
You are invited to attend a disciplinary hearing on ……………. at
………….. am/pm which is to be held in ……… where this will be
discussed.
You are entitled, if you wish, to be accompanied by another work colleague
or a trade union official. (Clarification of the role of the companion at such
hearings, made by the new Employment Relations Act 2004, came into force
on 1 October 2004 – see www.dti.gov.uk/employment/employment-legislation/era/page21215.html for details).
Yours sincerely
Signed …………………… Manager
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Letter 2 : to be sent by the employer after the hearing
Dear……………. Date………………..
On ………….. you were informed that ……………. [insert organisation name] was considering dismissing OR taking disciplinary action [insert proposed action] against you.
This was discussed in a hearing on …………… Following that hearing, it was decided that: [delete as applicable] Your conduct/ performance/ etc was still unsatisfactory and that you be dismissed Your conduct/ performance/ etc was still unsatisfactory and that the following disciplinary action would be taken against you ………… No further action would be taken against you. I am therefore writing to you to confirm the decision that you be dismissed and that your last day of service with the Company will be …………… The reasons for your dismissal are:
………………………………………………………………………………
………………………………………………………………………………
I am therefore writing to you to confirm the decision that disciplinary action will be taken against you. The action will be …………. The reasons for this disciplinary action are:
………………………………………………………………………………
………………………………………………………………………………
You have the right of appeal against this decision. Please [write] to ………within ……… days of receiving this disciplinary decision.
Yours sincerely
Signed …………………… Manager
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Letter 3: Notice of appeal meeting
Dear……………. Date………………..
You have appealed against your dismissal on ………, confirmed to you in writing on ………….. Your appeal will be heard by ………… in ……… on …………. at ………..
You are entitled, if you wish, to be accompanied by another work colleague or a trade union official. (Clarification of the role of the companion at such hearings, made by the new Employment Relations Act 2004, came into force on 1 October 2004 – see www.dti.gov.uk/employment/employment-legislation/era/page21215.html for details.) The decision of this appeal meeting is final and there is no further right of review.
Yours sincerely
Signed …………………… Manager
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Letter 4: Notice of result of appeal meeting
Dear……………. Date………………..
You appealed against the decision of the disciplinary hearing that you be dismissed/ subject to disciplinary action [delete as appropriate]. The appeal meeting was held on …………….. I am now writing to confirm the decision taken by ………… [insert name of the manager] who conducted the appeal meeting, namely that the decision to…………. stands/ the decision to ………….. be revoked (specify if no disciplinary action is being taken or what the new disciplinary action is).
You have now exercised your right of appeal under the Company Disciplinary Procedure and this decision is final.
Yours sincerely
Signed …………………… Manager
