From 1 October 2004, statutory procedures were introduced into the workplace to encourage the resolution of dismissal, disciplinary and grievance disputes. These have widely been regarded as a failure but for the meantime they remain in force and must be followed. Failure to do so can spell disaster for both employers and employees.
Disciplinary procedures apply when an employer contemplates dismissing or taking 'relevant disciplinary action'.
Grievances are defined as 'a complaint by an employee about action which his employer has taken or is contemplating taking in relation to him'. For examples of when the procedures apply, see the questions below on checking if employers' policies comply with the statutory minimum.
The procedures are compulsory and must currently be followed by all employers and employees. They represent a minimum standard of practice which must be followed or certain adverse consequences ensue.
There are two sets of procedures: standard, and modified for use in special circumstances such as for former employees. However, it is clear that parties should attempt to use the standard procedures where possible.
A major overhaul of these statutory procedures has been recommended in a review led by Michael Gibbons published in March 2007. For details see the question below on future developments. Until further legislation is introduced employers must continue to follow the procedures in their present form.
The time limits for making a claim to an employment tribunal are extended to accommodate the statutory procedures
To take account of the statutory procedures, a revised version of ACAS's widely-used Code of Practice on Disciplinary and Grievance Procedures was published. The Code sets out practical advice and guidance for dealing with disciplinary and grievance matters in the workplace.
If an employer dismisses an employee without completing the statutory procedure, and if the failure was wholly or mainly attributable to the employer then:
If an employee does not meet the requirements set out in the statutory procedures then:
It is these consequences of the procedures which have caused much confusion and attracted criticism. As a result, major reforms to the statutory procedures are proposed following a review led by Michael Gibbons and it is highly likely that these provisions will be replaced with discretionary costs sanctions in the tribunal.
Most existing disciplinary policies will comply with the statutory minimum as it contains very basic standard elements. The table below contains the key elements of the standard disciplinary and dismissal procedure which must be followed in cases of, for example:
The employer sets down in writing the nature of the employee's conduct, capability or other circumstances that may result in dismissal or disciplinary action, and sends a copy of this statement to the employee. The employer must inform the employee of the basis for their complaint.
The employer invites the employee to a hearing at a reasonable time and place where the issue can be discussed. The employee and employer must take all reasonable steps to attend. The employee has a right to be accompanied in the meeting by a trade union representative or colleague of their choice. After the meeting, the employer must inform the employee about any decision, and offer the employee the right of appeal.
If the employee wishes to appeal, they must inform the employer. The employer must invite the employee to attend a further meeting to appeal against the employer's decision. The employee has a right to be accompanied in the meeting by a trade union representative or colleague of their choice. The final decision must be communicated to the employee. Where possible, a more senior manager should
Yes, a dismissal, disciplinary and grievance policy and procedure should contain elements over and above the statutory minimum. Elements including the following should be considered:
The need to ensure policies and procedures are communicated to all employees is important especially if English is not their first language.
The ACAS Code of Practice on Disciplinary and Grievance Procedures incorporates the statutory minimum stages but contains good practice guidance which goes above and beyond the bare minimum steps. Although not legally binding, the Code continues to be used as a benchmark by employment tribunals when considering the fairness or otherwise of an employer's procedure and actions. The Code will be particularly important when an employee claims 'normal' unfair dismissal although the dismissal is not automatically unfair because the minimum statutory procedure has been followed.
Even when the recommendations of a review of the procedures led by Michael Gibbons and published in March 2007 have been implemented, dismissal, disciplinary and grievance procedures which contain elements over and above the statutory minimum will be essential. For details of the proposed reforms see the question below on future developments.
The key elements of the modified (special circumstances) statutory minimum dismissal and disciplinary procedure are outlined below. It will be unusual for this procedure to apply, but it must be followed in most cases where the standard procedure is not applicable. (For more information on when this procedure can be used, see below on whether an employer can choose to follow the modified procedure after dismissal in cases of gross misconduct.)
The employer must write down and send to the employee:
If the employee wishes to appeal, they must inform the employer. The employer must invite the employee to attend a hearing to appeal against the employer's decision, and the final decision must be communicated to the employee. The employee has a right to be accompanied in the meeting by a trade union representative or colleague of their choice.
No, to be safe employers should attempt to follow the standard disciplinary procedure in preference to the modified one even in case of gross misconduct. It is almost always unfair to dismiss an employee instantly, without first going through some form of procedure even in a case of apparently obvious gross misconduct. However the modified procedure will be appropriate for a small minority of gross misconduct dismissals where:
The table below contains the key elements of the modified (special circumstances) statutory minimum grievance procedure which may be followed in cases where the standard grievance procedure would otherwise apply but where the employment has ended and certain criteria are satisfied.
The employee must set out in writing and send to the employer:
The employer must set out their response in writing and send a copy of it to the employee.
The modified (two-step) grievance procedure will apply in circumstances where it would be irrational to oblige the parties to follow the standard procedure, including attending meetings, where there is no continuing employment relationship and the parties have no interest in following the procedures. It applies where the employment has ended and:
There have been quite a few cases concerning the employer’s position where an employee subsequently attempts to raise an issue at an employment tribunal which they did not refer to in their grievance. The starting point is that the employer can argue that the tribunal should refuse to hear any claim if the claimant has not initiated the statutory grievance procedure first.
Employers should, therefore, scrutinise an employee’s ET1 claim form to ascertain the nature of their complaints and compare it to the grievance. If there is a crucial element missing, for example a discrimination claim which was not mentioned in the grievance procedure, then the employer may be successful in claiming that the tribunal should not hear that aspect of the complaint. Although tribunals will not easily deny employees a hearing, they have done so in some cases. For example, in the case of Noskiw v Royal Mail Group plc (unreported, ET 2602639/04, 7 March 2005), Mr Noskiw's claim for disability discrimination was rejected on the basis that he had not properly raised a grievance. He had sent an e-mail to his employer complaining about aspects of his treatment in particular a pay review, but he had crucially omitted any reference to disability discrimination in his grievance. The employer was therefore successful in preventing him from pursuing that aspect of the claim.
However, it is important to note that although employees may be prevented from pursuing a tribunal claim if they have not raised their complaint in a Step One letter, relatively little is required from an employee to initiate the grievance procedure.