|
DISMISSAL - FAIR AND UNFAIR : A GUIDE FOR EMPLOYERS
PL714 (REV 11)
Appendix
2
The Acas Code of Practice on disciplinary and grievance procedures
Preamble
This Code
is issued under section 199 of the Trade Union and Labour Relations
(Consolidation) Act 1992 and was laid before both Houses of Parliament
on 7 June 2000.The Code came into effect by order of the Secretary
of State on 4 September 2000.
A failure
on the part of any person to observe any provision of this Code
of Practice does not of itself render that person liable to any
proceedings. In any proceedings before an employment tribunal
any Code of Practice issued under sections 199 and 201 of the
Trade Union and Labour Relations (Consolidation) Act 1992 is admissible
in evidence and any provision of the Code which appears to the
tribunal to be relevant to any question arising in the proceedings
is required to be taken into account in determining that question.
(Trade Union and Labour Relations (Consolidation) Act 1992, section
207) This Code has also to be taken into account by the arbitrators
appointed by Acas to determine cases brought under the Acas Arbitration
Scheme (see Section 212A of the Trade Union and Labour Relations
(Consolidation) Act 1992).
Some of the
provisions referred to in this code only apply by statute to employees.
But others, such as the right to be accompanied at disciplinary
and grievance hearings, apply to all workers. This Code is about
good employment practice. Therefore where workers are involved
in grievance and disciplinary proceedings, it would be good practice
to apply the standards set out in the guidelines in sections one
and two to those proceedings.
For ease of
reference, text in bold type in this code summarises statutory
provisions, whilst practical guidance is set out in ordinary type.
Whilst every effort has been made to ensure that the explanations
included in the Code are accurate, only the Courts or Tribunals
can give authoritative interpretations of the law.
Introduction
This code
aims to help employers, workers and their representatives by giving
practical guidance on how to deal with disciplinary and grievance
issues in employment. It also provides guidance on the statutory
right of a worker to be accompanied at a disciplinary or grievance
hearing. In small establishments it may not be practicable to
adopt all the detailed provisions relating to disciplinary and
grievance procedures, but most of the essential features listed
in paragraphs 9 and 38 to 41 could be adopted and incorporated
into a simple procedure.
Disciplinary
issues arise when problems of conduct or capability are identified
by the employer and management seeks to address them through well
recognised procedures. In contrast, grievances are raised by individuals
bringing to management's attention concerns or complaints about
their working environment, terms and conditions and work-place
relationships.
The code is
divided into three sections as follows:
Section 1 - deals with disciplinary practice and procedures;
Section 2 - considers the handling of grievances;
Section 3 - is concerned with the statutory right to be accompanied
at disciplinary and grievance hearings.
Section
One
Disciplinary practice and procedures in employment
Why
have disciplinary rules and procedures?
1.
Disciplinary rules and procedures are necessary for promoting
orderly employment relations as well as fairness and consistency
in the treatment of individuals. They enable organisations to
influence the conduct of workers and deal with problems of poor
performance and attendance thereby assisting organisations to
operate effectively. Rules set standards of conduct and performance
at work; procedures help ensure that the standards are adhered
to and also provide a fair method of dealing with alleged failures
to observe them.
2.
It is important that workers know what standards of conduct and
performance are expected of them. The Employment Rights Act 1996
requires employers to provide written information for their employees
about certain aspects of their disciplinary rules and procedures.
1 Managers should
also know and be able to apply the rules and the procedures they
are required to follow.
3.
The importance of having disciplinary rules and procedures and
ensuring that they are followed has also been recognised by the
law relating to dismissals, since the grounds for dismissal and
the way in which the dismissal has been handled can be challenged
before an employment tribunal or an Acas-appointed arbitrator.2
Where either of these is found by a tribunal or arbitrator to
have been unfair, the employer may be ordered to re-instate or
re-engage the employees concerned where requested and may be liable
to pay compensation to them. In coming to a decision about the
fairness or otherwise of a dismissal, the tribunal, or arbitrator,
will consider whether the employer acted reasonably in all the
circumstances, having regard to the size and administrative resources
of the undertaking.
Formulating
policy
4.
Management is responsible for maintaining discipline and setting
standards of performance within the organisation and for ensuring
that there are appropriate disciplinary rules and procedures covering
issues of worker conduct and capability. If they are to be fully
effective, however, the rules and procedures need to be accepted
as reasonable both by those who are covered by them and those
who operate them. Management should therefore aim to secure the
involvement of workers and where appropriate their representatives
and all levels of management when formulating new or revising
existing rules and procedures. Where trade unions are recognised,
trade union officials 3
may, or may not, wish to participate in the formulation of the
rules but they should participate fully with management in agreeing
the procedural arrangements which will apply and in seeing that
these arrangements are used properly, fairly and consistently.
Rules
5.
When drawing up disciplinary rules, the aim should be to specify
clearly and concisely those that are necessary for the efficient
and safe performance of work and for the maintenance of satisfactory
relations within the workforce and between workers and management.
It is unlikely that any set of disciplinary rules can cover all
circumstances that may arise. However, it is usual that rules
would cover issues such as misconduct, sub-standard performance
(where not covered by a separate capability procedure), harassment
or victimisation, misuse of company facilities including computer
facilities (eg, e-mail and the Internet), poor timekeeping and
unauthorised absences. The rules required will necessarily vary
according to particular circumstances, such as the type of work,
working conditions and size and location of the workplace. Whatever
set of rules are eventually drawn up they should not be so general
as to be meaningless.
6.
Rules should be set out clearly and concisely in writing and be
readily available to all workers, for example in handbooks or
on company Intranet sites. Management should make every effort
to ensure that all workers know and understand the rules including
those whose first language is not English or who have a disability
or impairment (eg, the inability to read). This may best be achieved
by giving every worker a copy of the rules and explaining them
orally. In the case of new workers this might form part of any
induction programme. It is also important that managers at all
levels and worker representatives are fully conversant with the
disciplinary rules and that the rules are regularly checked and
updated where necessary.
7.
Workers should be made aware of the likely consequences of breaking
disciplinary rules or failing to meet performance standards. In
particular, they should be given a clear indication of the type
of conduct, often referred to as gross misconduct, which may warrant
summary dismissal (ie, dismissal without notice). Summary is not
necessarily synonymous with instant and incidents of gross misconduct
will usually still need to be investigated as part of a formal
procedure. Acts which constitute gross misconduct are those resulting
in a serious breach of contractual terms and will be for organisations
to decide in the light of their own particular circumstances.
However, they might include the following:
i) theft,
fraud and deliberate falsification of records;
ii) physical violence;
iii) serious bullying or harassment;
iv) deliberate damage to property;
v) serious insubordination;
vi) misuse of an organisation's property or name;
vii) bringing the employer into serious disrepute;
viii) serious incapability whilst on duty brought on by alcohol
or illegal drugs;
ix) serious negligence which causes or might cause unacceptable
loss, damage or injury;
x) serious infringement of health and safety rules;
xi) serious breach of confidence (subject to the Public Interest
(Disclosure) Act 1998).
As indicated
earlier this list is not intended to be exhaustive.
Essential
features of disciplinary procedures
8.
Disciplinary procedures should not be viewed primarily as a means
of imposing sanctions. Rather they should be seen as a way of
helping and encouraging improvement amongst workers whose conduct
or standard of work is unsatisfactory. Some organisations may
prefer to have separate procedures for dealing with issues of
conduct and capability but it is important to remember that any
hearing which might result in a formal warning or some other action
will be covered by the provisions on accompaniment set out in
the Employment Relations Act 1999 (see section three). Smaller
organisations may wish to deal with issues of conduct and capability
within one disciplinary procedure.
9.
When drawing up and applying disciplinary procedures employers
should have regard to the requirements of natural justice. This
means workers should be informed in advance of any disciplinary
hearing of the allegations that are being made against them together
with the supporting evidence and be given the opportunity of challenging
the allegations and evidence before decisions are reached. Workers
should also be given the right of appeal against any decisions
taken. Consequently good disciplinary procedures should:
i) be in writing;
ii) specify to whom they apply;
iii) be non-discriminatory;
iv) provide for matters to be dealt with without undue delay;
v) provide for proceedings, witness statements and records to
be kept confidential;
vi) indicate the disciplinary actions which may be taken;
vii) specify the levels of management which have the authority
to take the various forms of disciplinary action;
viii) provide for workers to be informed of the complaints against
them and where possible all relevant evidence before any hearing;
ix) provide workers with an opportunity to state their case before
decisions are reached;
x) provide workers with the right to be accompanied (see also
section three for information on the statutory right to be accompanied);
xi) ensure that, except for gross misconduct, no worker is dismissed
for a first breach of discipline;
xii) ensure that disciplinary action is not taken until the case
has been carefully investigated;
xiii) ensure that workers are given an explanation for any penalty
imposed;
xiv) provide a right of appeal - normally to a more senior manager
- and specify the procedure to be followed.
10.
It is important to ensure that all managers and, where appropriate,
worker representatives understand the organisation's disciplinary
procedure. Training in the use and operation of the procedure
may also be appropriate. There can be benefits in undertaking
such training on a joint basis.
The
procedure in operation
11.
When a disciplinary matter arises, the relevant supervisor or
manager should first establish the facts promptly before recollections
fade, and where appropriate obtain statements from any available
witnesses. It is important to keep a record for later reference.
Having investigated all the facts the manager or supervisor should
decide whether to drop the matter; arrange informal coaching or
counselling; or arrange for the matter to be dealt with under
the disciplinary procedure.
12.
Minor cases of misconduct and most cases of poor performance may
best be dealt with by informal advice, coaching and counselling
rather than through the disciplinary procedure. Sometimes managers
may issue informal oral warnings - but they need to ensure that
problems are discussed with the objective of encouraging and helping
workers to improve. It is important that workers understand what
needs to be done, how performance or conduct will be reviewed
and over what period. Workers should also be made aware of what
action will be taken if they fail to improve either their performance
or conduct. Informal warnings and/or counselling are not part
of the formal disciplinary procedure and the worker should be
informed of this.
13.
In certain circumstances, for example in cases involving gross
misconduct, where relationships have broken down or where it is
considered there are risks to an employer's property or responsibilities
to other parties, consideration should be given to a brief period
of suspension with pay whilst an unhindered investigation is conducted.
Such a suspension should only be imposed after careful consideration
and should be reviewed to ensure it is not unnecessarily protracted.
It should be made clear that the suspension is not considered
as disciplinary action.
14.
Before a decision is reached or any disciplinary action taken
there should be a disciplinary hearing at which workers have the
opportunity to state their case and to answer the allegations
that have been made. Wherever possible the hearing should be arranged
at a mutually convenient time and in advance of the hearing the
worker should be advised of any rights under the disciplinary
procedure including the statutory right to be accompanied (see
section three). Prior to this stage, where matters remain informal,
the statutory right of accompaniment does not arise.
15.
Where the facts of a case appear to call for formal disciplinary
action a formal procedure should be followed. The type of procedure
will vary according to the circumstances of the organisation.
Depending on the outcome of the procedure some form of disciplinary
action may be taken as follows:
First Warning:
Oral
- In the case of minor infringements the worker should be given
a formal oral warning. Workers should be advised of the reason
for the warning, that it constitutes the first step of the disciplinary
procedure and of their right of appeal. A note of the oral warning
should be kept but should be disregarded for disciplinary purposes
after a specified period (e.g., six months). Or
Written
- If the infringement is regarded as more serious the worker should
be given a formal written warning giving details of the complaint,
the improvement or change in behaviour required, the timescale
allowed for this and the right of appeal. The warning should also
inform the worker that a final written warning may be considered
if there is no sustained satisfactory
improvement or change. A copy of the written warning should be
kept on file but should be disregarded for disciplinary purposes
after a specified period (eg, 12 months).
Final Written
Warning:
Where there
is a failure to improve or change behaviour during the currency
of a prior warning, or where the infringement is sufficiently
serious, the worker should normally be given a final written warning.
This should give details of the complaint, warn the worker that
failure to improve or modify behaviour may lead to dismissal or
to some other action short of dismissal and refer to the right
of appeal. The final written warning should normally be disregarded
for disciplinary purposes after a specified period (eg, 12 months).
Dismissal
or Other Sanction:
If the worker's
conduct or performance still fails to improve the final step might
be disciplinary transfer, disciplinary suspension without pay
4 , demotion, loss
of seniority, loss of increment (provided these penalties are
allowed for in the contract) or dismissal. The decision to dismiss
should be taken only by the appropriate designated manager and
the worker should be informed as soon as reasonably practicable
of the reasons for the dismissal, the date on which the contract
between the parties will terminate, the appropriate period of
notice (or pay in lieu of notice) and information on the right
of appeal including how to make the appeal and to whom. The decision
to dismiss should be confirmed in writing. Employees with one
year's continuous service or more have the right, on request,
to have a "written statement of particulars of reasons for
dismissal". 5
16.
When deciding whether a disciplinary penalty is appropriate and
what form it should take it is important to bear in mind the need
to act reasonably in all the circumstances. Factors which might
be relevant include, the extent to which standards have been breached,
precedent, the worker's general record, position, length of service
and special circumstances which might make it appropriate to adjust
the severity of the penalty.
17.
When operating disciplinary procedures employers should be particularly
careful not to discriminate on the grounds of race, gender or
disability, eg, whilst it is not unlawful to take disciplinary
action against a pregnant woman for some reason unconnected with
her pregnancy it is unlawful sex discrimination and automatically
unfair to dismiss a woman on the grounds of her pregnancy.
18.
In the course of a disciplinary case a worker might sometimes
raise a grievance about the behaviour of the manager handling
the case. Where this happens, and depending on the circumstances
it may be appropriate to suspend the disciplinary procedure for
a short period until the grievance can be considered. Consideration
might also be given, where possible, to bringing in another manager
to deal with the disciplinary case.
Dealing
with absence
19.
When dealing with absence a distinction should always be made
between absences on grounds of medically certificated illness,
both physical and mental, and those which may call for disciplinary
action. All unexpected absences should be investigated promptly
and the worker asked to give an explanation 6
. If, after investigation, it appears that there were no acceptable
reasons for the absence the matter should be treated as a conduct
issue and be dealt with under the disciplinary procedure. It is
important that the worker is told what improvement in attendance
is expected and warned of the likely consequences if this does
not happen.
20.
Where the absence is due to medically certificated illness the
issue becomes one of capability and employers should take a sympathetic
and considerate approach to these sort of absences. In deciding
what action to take in these cases employers will need to take
into account, the likelihood of an improvement in health and subsequent
attendance (based where appropriate on professional medical advice),
the availability of suitable alternative work, the effect of past
and likely future absences on the organisation, how similar situations
have been handled in the past and whether the illness is a result
of a disability as defined in the Disability Discrimination Act
1995. Even though employers may have a separate procedure for
dealing with illness any hearing which could result in a formal
warning or some other action will attract the statutory right
of accompaniment (see section three).
21.
In cases of extended sick leave both statutory and contractual
issues will need to be addressed and specialist advice may be
necessary.
Dealing
with poor performance
22.
Individuals have a contractual responsibility to perform to a
satisfactory level and should be given every help and encouragement
to do so. Employers have a responsibility for setting realistic
and measurable standards of performance and for explaining these
standards carefully to employees.
23.
Where workers are found to be failing to perform to the required
standard the matter should be investigated before any action is
taken . Where the reason for the sub standard performance is found
to be a lack of the required skills the worker should, wherever
practicable, be assisted through training or coaching and given
reasonable time to reach the required standard. Where the sub
standard performance is due to negligence or lack of application
on the part of the worker then some form of disciplinary action
will normally be appropriate. Failures to perform to the required
standard can either be dealt with through the normal disciplinary
procedure or through a separate capability procedure.
24.
A worker should not normally be dismissed because of a failure
to perform to the required standard unless warnings and an opportunity
to improve (with reasonable targets and timescales) have been
given. However, where a worker commits a single error due to negligence
and the actual or potential consequences of that error are, or
could be, extremely serious, warnings may not be appropriate.
The disciplinary or capability procedure should indicate that
summary dismissal action may be taken in such circumstances.
25.
Employers may need to have special arrangements for dealing with
poor performance of workers on short-term contracts or new workers
during their probationary period.
Dealing
with special situations
26.
Certain situations will require special consideration. Workers
to whom the full procedure is not immediately available. Special
provisions may be necessary for the handling of disciplinary matters
among nightshift workers, workers in isolated locations or depots
or others who may pose particular problems. Trade union officials.
Disciplinary action against a trade union official can lead to
a serious dispute if it is seen as an attack on the union's functions.
Although normal disciplinary standards should apply to their conduct
as workers, if disciplinary action is contemplated then the case
should be discussed with a senior trade union representative or
full time official. Criminal charges or convictions outside
employment. These should not be treated as automatic reasons
for dismissal. The main consideration should be whether the offence
is one that makes workers unsuitable for their type of work. In
all cases employers, having considered the facts, will need to
consider whether the conduct is sufficiently serious to warrant
instituting the disciplinary procedure. For instance, workers
should not be dismissed solely because a charge against them is
pending or because they are absent as a result of being remanded
in custody.
Appeals
27.
The opportunity to appeal against a disciplinary decision is essential
to natural justice. Workers may choose to raise appeals on a number
of grounds which could include the perceived unfairness of the
judgement, the severity of the penalty, new evidence coming to
light or procedural irregularities. These grounds need to be considered
when deciding the extent of any new investigation or re-hearing
in order to remedy previous defects in the disciplinary process.
28.
Appeals should be dealt with as promptly as possible. A time limit
should be set within which appeals should be lodged. This time
limit may vary between organisations but five
working days for lodging an appeal is usually appropriate. A time
limit should also be set for hearing the appeal.
29.
Wherever possible the appeal should be heard by an appropriate
individual, usually a senior manager, not previously involved
in the disciplinary procedure. In small organisations it may not
be possible to find such an individual and in these circumstances
the person dealing with the appeal should act as impartially as
possible. Independent arbitration is sometimes an appropriate
means of resolving disciplinary issues and where the parties concerned
agree it may constitute the appeals stage of procedure.
30.
Individuals should be informed of the arrangements for appeal
hearings and also of their statutory or other right to be accompanied
at these hearings (see section three). Where new evidence arises
during the appeal the worker, or their representative, should
be given the opportunity to comment before any action is taken.
It may be more appropriate to adjourn the appeal to investigate
or consider such points.
31.
The worker should be informed of the results of the appeal and
the reasons for the decision as soon as possible and this should
be confirmed in writing. If the decision constitutes the final
stage of the organisation's appeals procedure this should be made
clear to the worker
Records
32.
Records should be kept detailing the nature of any breach of disciplinary
rules or unsatisfactory performance, the worker's defence or mitigation,
the action taken and the reasons for it, whether an appeal was
lodged, its outcome and any subsequent developments. These records
should be kept confidential and retained in accordance with the
disciplinary procedure and the Data Protection Act 1998 which
requires the release of certain data to individuals on their request.
Copies of any meeting records should be given to the individual
concerned although in certain circumstances some information may
be withheld, for example to protect a witness.
Further
action
33.
Rules and procedures should be reviewed periodically in the light
of any developments in employment legislation or good employment
practice and if necessary, revised in order to ensure their continuing
relevance and effectiveness. Any amendments and additional rules
imposing new obligations should be introduced only after reasonable
notice has been given to all workers and, where appropriate, their
representatives have been consulted. Except in very exceptional
circumstances, where legal advice should be sought, changes to
individual contracts may only be made with agreement.
Section
Two
Grievance procedures
Why
have a grievance procedure?
34.
In any organisation workers may have problems or concerns about
their work, working environment or working relationships that
they wish to raise and have addressed. A grievance procedure provides
a mechanism for these to be dealt with fairly and speedily, before
they develop into major problems and potentially collective disputes.
35.
Whilst employers are not required by statute to have a grievance
procedure it is good employment relations practice to provide
workers with a reasonable and prompt opportunity to obtain redress
of any grievance. Employers are statutorily required in the written
statement of terms and conditions of employment to specify, by
description or otherwise, a person to whom the employee can apply
if they have a grievance and they are also required by statute
to allow a worker to be accompanied at certain grievance hearings
(see section three).
36.
In circumstances where a grievance may apply to more than one
person and where a trade union is recognised it may be appropriate
for the problem to be resolved through collective agreements between
the trade union(s) and the employer.
Formulating
procedures
37.
It is in everyone's best interest to ensure that workers' grievances
are dealt with quickly and fairly and at the lowest level possible
within the organisation at which the matter can be resolved. Management
is responsible for taking the initiative in developing grievance
procedures which, if they are to be fully effective, need to be
acceptable to both those they cover and those who have to operate
them. It is important therefore that senior management aims to
secure the involvement of workers and their representatives, including
trade unions where they are recognised, and all levels of management
when formulating or revising grievance procedures.
Essential
features of grievance procedures
38.
Grievance procedures enable individuals to raise issues with management
about their work, or about their employers', clients' or their
fellow workers' actions that affect them. It is impossible to
provide a comprehensive list of all the issues that might give
rise to a grievance but some of the more common include: terms
and conditions of employment; health and safety; relationships
at work; new working practices; organisational change and equal
opportunities.
39.
Procedures should be simple, set down in writing and rapid in
operation. They should also provide for grievance proceedings
and records to be kept confidential.
40.
It is good practice for individuals to be accompanied at grievance
hearings (see also section three for information on the statutory
right to be accompanied).
41.
In order for grievance procedures to be effective it is important
that all workers are made aware of them and understand them and
if necessary that supervisors, managers and worker representatives
are trained in their use. Wherever possible every worker should
be either given a copy of the procedures or provided with access
to it (eg, in the personnel handbook or on the company intranet
site) and have the detail explained to them. For new employees
this might best be done as part of any induction process. Special
allowance should be made for individuals whose first language
is not English or who have a visual impairment or some other disability.
The
procedure in operation
42.
Most routine complaints and grievances are best resolved informally
in discussion with the worker's immediate line manager. Dealing
with grievances in this way can often lead to speedy resolution
of problems and can help maintain the authority of the immediate
line manager who may well be able to resolve the matter directly.
Both manager and worker may find it helpful to keep a note of
such an informal meeting.
43.
Where the grievance cannot be resolved informally it should be
dealt with under the formal grievance procedure. The number of
stages contained in the procedure will depend on the size of organisation,
its management structure and the resources it has available. In
larger organisations the procedure might contain all the following
stages, but for the smaller business the first and final stages
might be sufficient:
First Stage:
Workers should put their grievance, preferably in writing, to
their immediate line manager. Where the grievance is against the
line manager the matter should be raised with a more senior manager.
If the grievance is contested the manager should invite the worker
to attend a hearing in order to discuss the grievance and should
inform the worker of his or her statutory right to be accompanied
depending on the nature of the grievance (see section three).
The manager should respond in writing to the grievance within
a specified time (eg, within five working days of the hearing
or, where no hearing has taken place, within five working days
of receiving written notice of the grievance). If it is not possible
to respond within the specified time period the worker should
be given an explanation for the delay and told when a response
can be expected.
Second
Stage: If the matter is not resolved at Stage 1 the worker
should be permitted to raise the matter in writing with a more
senior manager. The choice of this person will depend on the organisation
but could be a departmental, divisional or works' manager. The
manager should arrange to hear the grievance within a specified
period (eg, five working days) and should inform the worker of
the statutory right to be accompanied (see section three). Following
the hearing the manager should, where possible, respond to the
grievance in writing within a specified period (eg, ten working
days). If it is not possible to respond within the specified time
period the worker should be given an explanation for the delay
and told when a response can be expected.
Final Stage:
Where the matter cannot be resolved at Stage 2 the worker should
be able to raise their grievance in writing with a higher level
of manager than for Stage 2.The choice of this person will depend
on the organisation but could include directors or in certain
cases the chief executive or managing director. Workers should
be permitted to present their case at a hearing and should be
informed of their statutory right to be accompanied (see section
three).The manager dealing with the grievance should give a decision
on the grievance within a specified period (eg, ten working days).
If it is not possible to respond within the specified time period
the worker should be given an explanation and told when a response
can be expected.
44.
In most organisations it should be possible to have at least a
two stage grievance procedure. However, where there is only one
stage, for instance in very small firms where there is only a
single owner/manager, it is especially important that the person
dealing with the grievance acts impartially.
45.
In certain circumstances it may, with mutual agreement, be helpful
to seek external advice and assistance during the grievance procedure.
For instance where relationships have broken down an external
facilitator might be able to help resolve the problem. Where the
grievance is against the chief executive or managing director
an external stage using some form of alternative dispute resolution
might be helpful.
Special
considerations
46.
Some organisations may wish to have specific procedures for handling
grievances about unfair treatment eg, discrimination or bullying
and harassment, as these subjects are often particularly sensitive.
47.
Organisations may also wish to consider whether they need a whistleblowing
procedure in the light of the Public Interest Disclosure Act 1998.This
provides strong protection to workers who raise concerns about
wrongdoing (including frauds, dangers and cover-ups). While the
Act reassures workers that it is safe to raise such a concern
internally, it also protects disclosures to key regulatory authorities
and - provided they are reasonable and made with good cause -
wider disclosures.
48.
Sometimes a worker may raise a grievance about the behaviour of
a manager during the course of a disciplinary case. Where this
happens and depending on the circumstances, it may be appropriate
to suspend the disciplinary procedure for a short period until
the grievance can be considered. Consideration might also be given
to bringing in another manager to deal with the disciplinary case.
Records
49.
Records should be kept detailing the nature of the grievance raised,
the employers response, any action taken and the reasons for it.
These records should be kept confidential and retained in accordance
with the Data Protection Act 1998 which requires the release of
certain data to individuals on their request. Copies of any meeting
records should be given to the individual concerned although in
certain circumstances some information may be withheld, for example
to protect a witness.
Section
Three
The statutory right to be accompanied at disciplinary and grievance
hearings
What
is the right?
50.
Workers have a statutory right to be accompanied by a fellow
worker or trade union official 7
where they are required or invited by their employer to attend
certain disciplinary or grievance hearings and when they make
a reasonable request to be so accompanied. This right is additional
to any contractual rights.
To
whom does the right apply?
51.
The statutory right to be accompanied applies to all workers,
not just employees working under a contract of employment. "Worker"
is defined in the legislation and includes anyone who performs
work personally for someone else, but is not genuinely self-employed,
as well as agency workers and home workers, workers in Parliament
and Crown employees other than members of the armed forces 8
. There are no exclusions for part- time or casual workers, those
on short term contracts or for people who work overseas (subject
to any jurisdictional rules).
Application
of the statutory right
52.
The statutory right applies where a worker:
i) is required
or invited to attend a disciplinary or grievance hearing, and
ii) reasonably requests to be accompanied at the hearing.
What
is a disciplinary hearing?
53.
Whether a worker has a statutory right to be accompanied at a
disciplinary hearing will depend on the nature of the hearing.
Employers often choose to deal with disciplinary problems in the
first instance by means of an informal interview or counselling
session. So long as the informal interview or counselling session
does not result in a formal warning or some other action it would
not generally be good practice for the worker to be accompanied
as matters at this informal stage are best resolved directly by
the worker and manager concerned. Equally, employers should not
allow an investigation into the facts surrounding a disciplinary
case to extend into a disciplinary hearing. If it becomes clear
during the course of the informal or investigative interview that
formal disciplinary action may be needed then the interview should
be terminated and a formal hearing convened at which the worker
should be afforded the statutory right to be accompanied.
54.
The statutory right to be accompanied applies specifically
to hearings which could result in:
i) the
administration of a formal warning to a worker by his employer
(ie, a warning, whether about conduct or capability, that will
be placed on the worker's record);
ii) the
taking of some other action in respect of a worker by his employer
(eg, suspension without pay, demotion or dismissal); or
iii) the confirmation
of a warning issued or some other action taken. 9
What
is a grievance hearing?
55.
The statutory right to accompaniment applies only to grievance
hearings which concern the performance of a "duty by an employer
in relation to a worker" 10.
This means a legal duty arising from statute or common law (eg,
contractual commitments). Ultimately, only the courts can decide
what sort of grievances fall within the statutory definition but
the individual circumstances of each case will always be relevant.
For instance:
i) An individual's
request for a pay rise is unlikely to fall within the definition
unless specifically provided for in the contract. On the other
hand a grievance about equal pay would be included as this is
covered by a statutory duty imposed on employers.
ii) Grievances
about the application of a grading or promotion exercise are likely
to be included if they arise out of the contract but not grievances
arising out of requests for new terms and conditions of employment,
for instance a request for subsidised health care or travel loans
where these are not already provided for in the contract.
iii) Equally
an employer may be under no duty to provide car parking facilities
and thus a grievance on the issue would not attract the right
to be accompanied. However, if the worker was disabled and needed
parking facilities in order to attend work the employer's duty
of care becomes relevant and the worker is likely to have a statutory
right to be accompanied.
iv) Grievance
arising out of day to day friction between fellow workers may
not involve the breach of a legal duty unless the friction develops
into incidents of bullying or harassment which would be included
as they arise out of the employer's duty of care.
What
is a reasonable request?
56.
In order for workers to exercise their statutory right to be accompanied
they must make a reasonable request to their employer. It
will be for the Courts to decide what is reasonable in all the
circumstances. There is no test of reasonableness associated with
the choice of companion and workers are therefore free to choose
any one fellow worker or trade union official (within the limitations
of paragraph 57).
However, in
making their choice workers should bear in mind that it would
not be appropriate to insist on being accompanied by a colleague
whose presence would prejudice the hearing or who might have a
conflict of interest. Nor would it be sensible for a worker to
request accompaniment by a colleague from a geographically remote
location when someone suitably qualified was available on site.
The request to be accompanied need not be in writing.
The
accompanying person
57.
A worker has a statutory right to be accompanied at a disciplinary
or grievance hearing by a single companion who is either a:
i) Fellow
worker, ie, another of the employer's workers;
ii)A full-time
official employed by a trade union 11
; or a lay trade union official, so long as they have been reasonably
certified in writing by their union as having experience of, or
as having received training in, acting as a worker's companion
at disciplinary or grievance hearings. Such certification
may take the form of a card or letter.
Workers may,
however, have contractual rights to be accompanied by persons
other than those listed above, for instance a partner, spouse
or legal representative.
58.
Workers are free to choose an official from any trade union to
accompany them at a disciplinary or grievance hearing regardless
of whether the union is recognised or not. However where a trade
union is recognised in a workplace it is good practice for an
official from that union to accompany the worker at a hearing.
59.
There is no duty on a fellow worker or trade union official to
accept a request to accompany a worker and no pressure should
be brought to bear on a person if they do not wish to act as a
companion.
60.
Accompanying a worker at a disciplinary or grievance hearing is
a serious responsibility and it is important therefore that trade
unions ensure their officials are trained in the role. Even where
a trade union official has experience of acting in the role there
may still be a need for periodic refresher training.
61.
A worker who has been requested to accompany a colleague employed
by the same employer and has agreed to do so is entitled to take
a reasonable amount of paid time off to fulfil this responsibility.
The time off should not only cover the hearing but should also
allow a reasonable amount of time off for the accompanying person
to familiarise themselves with the case and confer with the worker
before and after the hearing. A lay trade union official is
permitted to take a reasonable amount of paid time off to accompany
a worker at a hearing so long as the worker is employed by the
same employer. 12
The
statutory right in operation
62.
It is good practice for an employer to try to agree a mutually
convenient date for the disciplinary or grievance hearing with
the worker and their companion. This is to ensure that hearings
do not have to be delayed or postponed at the last minute. Where
the chosen companion cannot attend on the date proposed the
worker can offer an alternative time and date so long as it is
reasonable and falls before the end of the period of five working
days 13 beginning
with the first working day after the day proposed by the employer.
In proposing an alternative date the worker should have regard
to the availability of the relevant manager. For instance it would
not normally be reasonable to ask for a new date for the hearing
where it was known the manager was going be absent on business
or on leave unless it was possible for someone else to act for
the manager at the hearing. The location and timing of any alternative
hearing should be convenient to both worker and employer.
63.
Both the employer and worker should prepare carefully for the
hearing. The employer should ensure that a suitable venue is available
and that, where necessary, arrangements are made to cater for
any disability the worker or their companion may have. Where English
is not the worker's first language there may also be a need for
translation facilities. The worker should think carefully about
what is to be said at the hearing and should discuss with their
chosen companion their respective roles at the meeting. Before
the hearing the worker should inform the employer of the identity
of their chosen companion. In certain circumstances, for instance
where the chosen companion is an official of a non-recognised
trade union, it might also be helpful for the employer and chosen
companion to make contact with each other before the hearing.
64.
The chosen companion has a statutory right to address the hearing
but no statutory right to answer questions on the worker's behalf.
Companions have an important role to play in supporting a
worker and to this end should be allowed to ask questions and
should, with the agreement of the employer, be allowed to participate
as fully as possible in the hearing. The companion should also
be permitted reasonable time to confer privately with the worker,
either in the hearing room or outside.
What
if the right to be accompanied is infringed?
65.
If an employer fails to allow a worker to be accompanied at
a disciplinary or grievance hearing or fails to re-arrange a hearing
to a reasonable date proposed by the worker when a companion cannot
attend on the date originally proposed, the worker may present
a complaint to an employment tribunal. If the tribunal finds in
favour of the worker the employer may be liable to pay compensation
of up to two weeks pay as defined in statute 14.
Where the failure leads to a finding of unfair dismissal greater
legal remedies might be involved.
66.
Employers must be careful not to place any worker at a disadvantage
for exercising or seeking to exercise their right to be accompanied
as such detriment is unlawful and may lead to a claim to an employment
tribunal. Equally employers must not place at a disadvantage those
who act or seek to act as the accompanying person.
Acas
publications
Other
employment legislation publications
1
Section 1 of the Employment Rights Act 1996 requires employers
to provide employees with a written statement of particulars of
employment. Such statements must also specify any disciplinary
rules applicable to them and indicate the person to whom they
should apply if they are dissatisfied with any disciplinary decision.
The statement should explain any further steps which exist in
any procedure for dealing with disciplinary decisions. The employer
may satisfy certain of these requirements by referring the employees
to a reasonably accessible document which provides the necessary
information. The statutory requirements relating to disciplinary
rules and procedures do not apply where on the day the employee's
employment began the total number of employees employed by the
employer and any associated employer was less than twenty. 
2
Section 111 (2) of the Employment Rights Act 1996 specifies that
a complaint of unfair dismissal has to be presented to an employment
tribunal before the end of the three month period beginning with
the effective date of termination.
3 Throughout this code, trade union official has the
meaning assigned to it by section 119 of the Trade Union and Labour
Relations (Consolidation) Act 1992 and means, broadly, officers
of the union, its branches and sections, and anyone else, including
fellow employees, appointed or elected under the union's rules
to represent members.
4
Where a disciplinary suspension without pay is imposed it should
not exceed any period allowed by the contract of employment.
5
The right to a written statement of reasons for dismissal applies
automatically to employees dismissed while pregnant or during
ordinary maternity leave without them having to request it.
6
When considering the reasons for absence or sub-standard performance
employers should bear in mind the provisions of the Disability
Discrimination Act 1995. In particular employers should note the
obligations placed on them by the Act to make reasonable adjustments
when dealing with sickness related absences.
7
See paragraph 57 for more information
on who can accompany a worker at a disciplinary or grievance hearing.
8
See Section 13 (1), (2) and (3) of the Employment Relations Act
1999 for definitions of "worker", "agency worker"
and "home worker".
9
See section 13(4) of the Employment Relations Act 1999.
10
See section 13(5) of the Employment Relations Act 1999.
11
As defined in sections 1 and 119 of the Trade Union and Labour
Relations (Consolidation) Act 1992.
12
Time off for a lay official to accompany a worker at another employer
is a matter for agreement by the parties concerned.
13
See section 13(6) of the Employment Relations Act 1999 for a definition
of "working day".
14
See Chapter II of Part XIV of the Employment Rights Act 1996.
|
