LRD Booklets September 2012

Disciplinary and grievance procedures - a practical guide for union reps

Introduction

Introduction (615 words)

This LRD booklet is intended to provide practical advice and support for reps of members who are facing a disciplinary or considering whether to ...
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Chapter 1

1. THE ACAS CODE OF PRACTICE AND GUIDANCE ON DISCIPLINE AND GRIEVANCE (336 words)

The key resource for reps engaged in representing individual members in both disciplinary and grievance hearings is the Acas Code of Practice on ...
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Core principles of the Acas Code (236 words)

The Acas Code contains some core principles, intended to reflect rules of natural justice. They apply to both disciplinaries and ...
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Disciplinary sanctions under the Code (51 words)

Employers must act consistently and proportionately when imposing any disciplinary sanction. Except in cases of gross misconduct, nobody should be ...
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Separate procedures (68 words)

Some large employers use separate procedures to deal, for example, with capability (performance), long-term ill-health, absence management, ...
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Evaluation of the Code (290 words)

Acas evaluation has shown that the Code has generally been welcomed by employers, subject to some doubts raised as to whether the language used is ...
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Chapter 2

2. ESTABLISHING A DISCIPLINARY PROCEDURE (252 words)

Workers need to know what standards are expected of them and what is likely to happen if those standards are not met. It is not appropriate to ...
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The legal obligation to have a disciplinary procedure (135 words)

Every employer must have a written disciplinary procedure (section 3 of the Employment Rights Act 1996 (ERA 96)). Details of the procedure must be ...
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Developing a disciplinary procedure (234 words)

The Acas Code says reps should be involved in the development of disciplinary rules and procedures. Although many union reps will not be keen to be ...
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Points to consider when negotiating disciplinary procedures (1,031 words)

In many workplaces, disciplinary procedures are highly standardised, and particularly in the private sector, their content tends to be largely ...
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The Acas Guidance on Discipline and Grievance says good disciplinary procedures should: (187 words)

} be in ...
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Specifying unacceptable conduct (344 words)

The Acas Code says that, except in cases of gross misconduct, nobody should be dismissed for a first incident of misconduct. Disciplinary rules ...
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Gross misconduct (722 words)

There is no legal definition of “gross misconduct” but certain behaviours, such as dishonesty or fraud, are almost certain to be treated as ...
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Failure to follow an agreed procedure (244 words)

Where there is an agreed disciplinary procedure and an employer fails to follow it, for example, failing to work through several stages of appeal, ...
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Contractual disciplinary procedures (491 words)

If a disciplinary procedure is contractual, reps are in a strong position to insist the employer works through all its stages and follows it to the ...
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Chapter 3

3. INFORMAL AND FORMAL PROCEDURES (536 words)

The Acas Guidance recommends that cases of minor misconduct or unsatisfactory performance are usually best dealt with informally. “A quiet word is ...
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Moving from informal to formal stage (257 words)

If an employer intends to move from an informal to a formal stage, this should be spelled out in writing. A formal hearing is any hearing that is ...
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Chapter 4

4. INVESTIGATION (181 words)

At this stage, TUC guidance outlines the typical role played by a union rep representing a member facing a disciplinary as ...
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Investigating the charges (605 words)

There are no circumstances in which a failure to investigate and follow a fair procedure can be justified, no matter how flagrant or obvious the ...
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An investigation must be carried out promptly (229 words)

The Acas Code emphasises that any investigation must be carried out without unreasonable delay to establish the facts before memories fade. ...
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Surveillance evidence (855 words)

What if the employer has gathered information using covert surveillance methods, for example, private investigators? This is increasingly common, ...
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Anonymous evidence (418 words)

Sometimes employers rely on allegations from employees who want to remain anonymous. The basic rule is that where an employee is not given proper ...
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Supporting a member during an investigation (235 words)

The TUC suggests that during a management investigation, reps can help the member in a variety of ways, for ...
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Who should carry out the investigation? (48 words)

The Acas Code says that in misconduct cases, different people should carry out the investigation and the disciplinary hearing wherever this is ...
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Gathering evidence to support the employee’s case (233 words)

During this period, the employee should be encouraged to carry out his or her own investigation, gathering evidence to support the case. Depending ...
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Ending the investigation (102 words)

At the end of the investigation, the investigator should make a recommendation to the employer as to whether or not the facts reveal a “case to ...
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More information (27 words)

TUC Workplace Manual, a practical handbook for union representatives, 2012, published by TUC price £18 for TUC member unions. Copies can be ordered ...
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Chapter 5

5. SUSPENSION (790 words)

It has become increasingly the “norm” for employers to suspend employees when investigating allegations of gross misconduct. This has led to ...
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Chapter 6

6. GETTING READY FOR THE HEARING (449 words)

If, following the investigation stage, it is decided that there is a disciplinary case to answer, the employer needs to inform the employee of this. ...
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Supporting evidence (293 words)

Reps should check that the employee has been given all the evidence to be considered in the hearing. This could include letters, written policies or ...
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Data Subject Access Request (280 words)

In the right circumstances, it can be a good idea to make a Data Subject Access Request under the Data Protection Act 1998. ...
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Discrimination (513 words)

Sometimes there are good grounds for suspecting that there may be unlawful discrimination (whether conscious or unconscious) behind employer ...
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Government consultation on abolition of statutory questionnaire procedure (96 words)

Reps should note that at the time of writing, it is still possible to send a statutory questionnaire to your employer. However, the government is ...
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Chapter 7

7. A FAIR DISCIPLINARY HEARING (16 words)

The next stage of the process is the disciplinary hearing itself. ...
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Delay (110 words)

The Acas Code says that a disciplinary meeting should be held without unreasonable delay while allowing the employee reasonable time to prepare the ...
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Attending the hearing (173 words)

The Acas Code says both parties should make “every effort” to attend the disciplinary hearing. Employees are often tempted not to attend the ...
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Resigning once disciplinary proceedings have begun but before dismissal (77 words)

Sometimes an employee may choose to resign part-way through the disciplinary process. There may inevitably be some situations when a member decides ...
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Dismissing an employee in his or her absence (484 words)

A decision to dismiss taken in an employee’s absence can be fair (even if the employee is genuinely sick). Whether or not it is fair is likely to ...
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Arranging the hearing (147 words)

As a first step, the member will need to find out from their rep or companion when they are available to attend a hearing. If the employer proposes ...
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Special hearing arrangements (824 words)

Reps need to consider with the member whether to ask for any special arrangements for the hearing. Relevant factors could include, for ...
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Adjustments to take account of pregnancy and maternity (116 words)

On its own, it is not sex discrimination to conduct disciplinary proceedings against a woman during her maternity leave, even though she is less ...
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Who is hearing the disciplinary? Is there any suggestion of bias? (203 words)

The decision-maker at the hearing should be sufficiently remote from the relevant incident and people involved to be able to make an unbiased ...
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Is there a right to cross-examine witnesses? (264 words)

The Acas Code envisages either side calling witnesses to attend the disciplinary hearing whenever this is “appropriate”. A lot will depend on ...
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At the hearing (370 words)

The meeting usually opens with the decision-maker identifying all those present, explaining their roles and outlining how the meeting is to be run. ...
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Asking for an adjournment (78 words)

Ask for a brief adjournment if the member becomes distressed or angry. Ask for a longer adjournment (re-scheduling the meeting for a later date, if ...
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Note-takers (381 words)

It is very important to have an accurate and full record of the meeting. This will be the main source of information as to what was said for any ...
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Recording devices (72 words)

Consider whether to ask for the meeting to be recorded. In practice, recordings may be of limited use, because transcribing is time-consuming and ...
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Secret recording? (183 words)

Clandestine recordings are becoming more frequent because most people have a mobile phone. On balance, these are generally a bad idea. ...
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Overlapping disciplinary and grievance procedures (540 words)

The Acas Code (paragraph 44) says that where an employee raises a grievance during the disciplinary process, an employer may temporarily suspend the ...
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The band of reasonable responses (211 words)

When deciding whether or not a dismissal is fair, a tribunal is not allowed to substitute its view for that of the employer. It will not decide ...
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General arguments to make in disciplinaries (109 words)

The choice of argument will obviously depend on the particular allegations being made. It is important to concentrate on the strongest arguments — ...
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Precedent and consistency (262 words)

Under the Acas Code, employers must act consistently when disciplining staff. The TUC suggests that reps should investigate how managers treated ...
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‘Making an example’ of workers in order to deter others is likely to be unfair (90 words)

Managers should not single out one member for more serious sanctions unless they have a clear ...
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Apologising (218 words)

Where appropriate, apologising, acknowledging an error, cooperating and indicating willingness to learn from mistakes can help avoid a dismissal. ...
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Poor performance (283 words)

Possible arguments ...
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Ill-health (305 words)

Some key issues could ...
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Medical examinations (167 words)

Employers need a worker’s consent to access medical information and a worker has the right to see and comment on any medical report before it goes ...
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Intermittent absence (150 words)

Some key arguments ...
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More information (57 words)

The Acas Guidance on Discipline and Grievances at Work includes a separate section in Appendix 4: Dealing with absence. Most large employers have a ...
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Chapter 8

8. THE RIGHT TO BE ACCOMPANIED (509 words)

All workers (not just employees) have the right to be accompanied at disciplinary and grievance hearings under section 10 of the Employment ...
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Who can be a companion? (304 words)

An employee can be accompanied by a single companion who is ...
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Right to paid time off (208 words)

Section 10(6) of ERA 99 says that an employee acting as a companion for a co-worker employed by the employer is entitled to take paid time off for ...
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Right to time off for training (269 words)

In workplaces without union recognition, there is no specific statutory entitlement to time off for training to act as a companion, although it is ...
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Available training (39 words)

Unionlearn, the TUC’s learning and training organisation, provides courses for reps on providing individual representation for members, including ...
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How to exercise the right to be accompanied (166 words)

Once a worker has been invited to the hearing they can request that a companion accompanies them. The request does not have to be in writing and an ...
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The role of the companion (154 words)

The companion can address the hearing and confer with the worker during the hearing. They can ...
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Enforcing the right (86 words)

If an employer fails to comply with a worker’s request to be accompanied, s/he can bring a claim in the employment tribunal. A claim can also be ...
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Facilities under the Acas Code on time off for trade union duties and activities (60 words)

The Code gives guidance on appropriate facilities for reps needing to confer privately with members who are involved in formal procedures. ...
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Protection from victimisation (303 words)

Workers and their chosen companions have the legal right not to be subjected to any detriment by the employer as a result of exercising, or seeking ...
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Employment tribunal fees (97 words)

From summer 2013, workers are to be required to pay a fee to use the employment tribunal. The Ministry of Justice has published a list of proposed ...
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Chapter 9

9. DECISIONS (123 words)

After the disciplinary hearing, the employer must decide whether or not to take disciplinary action, and inform the employee. ...
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Possible arguments to use in mitigation (193 words)

The arguments available for use in mitigation (i.e. to argue in favour of a less severe punishment) will obviously depend on the facts of each case. ...
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Disciplinary penalties (348 words)

Most disciplinary procedures impose progressively more serious penalties, depending on whether the employee has committed a first offence or a ...
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Final written warning (22 words)

Where there is a failure to improve after an initial warning, an employer can issue a final written warning. ...
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Moving straight to a final warning (186 words)

Where misconduct is sufficiently serious, an employer can move straight to a final warning without issuing a first warning. The Acas Code (para 19) ...
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Dismissal (105 words)

Dismissal is the final stage in the process. It should not be a penalty for a first offence, except in cases of gross misconduct. Reps should check ...
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Keeping and monitoring records (274 words)

Reps should keep a record of penalties imposed on employees. Ideally, the record should ...
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Warnings (405 words)

An employee issued with a warning after a disciplinary hearing runs the risk of dismissal if they re-offend, particularly while any final written ...
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References and the disciplinary and grievance process (472 words)

An employer is not obliged to give a reference, and any reference must be true, accurate and fair, but there is no duty to be full and comprehensive. ...
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Chapter 10

10. APPEALS (71 words)

All disciplinary procedures should give employees the right to appeal. An employer who fails to allow an appeal will be in breach of the Acas Code ...
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To appeal or not to appeal (240 words)

Employees sometimes do not want to appeal, as they cannot face another stressful hearing and they think that it will make no difference to the final ...
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Fixing procedural defects at an appeal hearing (187 words)

A defective disciplinary hearing, for example, one where the employee has not had the chance to put his or her case, can often be put right on ...
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Preparing grounds of appeal (345 words)

The Acas Code requires employees to let employers know the grounds of appeal in writing. These should be clear and concise and should emphasise the ...
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Who hears the appeal? (237 words)

The Acas Code requires the appeal to be dealt with impartially by a manager who has not had prior involvement with the case at all. The Guidance ...
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How should an appeal hearing be conducted? (189 words)

The Acas Guidance summarises the core elements of an appeal ...
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Other stages of appeal (101 words)

Most disciplinary procedures in the private sector provide only one right of appeal. Other stages of appeal are sometimes available in some more ...
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Consequences of an appeal (151 words)

Lodging an internal appeal will not change the dismissal date or continue the employment. ...
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Effect of appeal on further disciplinary action (123 words)

If an employee appeals against disciplinary action less than dismissal, such as a warning, but the appeal has not yet been heard, that disciplinary ...
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Chapter 11

11. GRIEVANCE PROCEDURES (112 words)

Like disciplinary procedures, grievance procedures must meet the requirements of the Acas Code of Practice on disciplinary and grievance procedures ...
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Time limits (92 words)

The grievance procedure does not change the time limits for bringing a legal claim in the employment tribunal. In other words, the three-month time ...
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Establishing a grievance procedure (126 words)

It is mutually beneficial if grievances are promptly and thoroughly aired. This enables potentially damaging problems to be identified and tackled, ...
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Drawing up grievance procedures (170 words)

The Acas Code suggests the ...
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Grievance procedures and third parties (95 words)

Sometimes employees want to raise issues about concerns that are outside the control of the organisation, for example, bullying or harassment by a ...
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Grievance information required (123 words)

Many of the points raised in relation to disciplinaries also relate to grievances (see Chapters 1, 7 and 8 above). The following is a ...
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Raising a grievance (274 words)

If a grievance is not settled informally, then it should normally be raised formally with the employee’s manager, unless the grievance is against ...
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What if the employer fails to deal with the grievance? (368 words)

An employer who ignores a grievance or fails to deal with a grievance within a reasonable time may be in fundamental breach of the employment ...
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The content of the grievance (268 words)

All the Acas Code says about the content of the written grievance letter is that it should “set out the nature of the grievance”. It is ...
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The grievance hearing and decision (355 words)

Many of the points raised in relation to disciplinary hearings and decisions also relate to grievances (see Chapters 1, 7 and 8). The following is a ...
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Appealing a grievance decision (207 words)

Many of the points raised in relation to disciplinary appeals also relate to grievance appeals (see Chapter 10). The following is a ...
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Status quo agreements (186 words)

Sometimes unions have managed to negotiate “status quo” agreements in grievance procedures. A status quo agreement is an agreement that until ...
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Keeping and monitoring records (157 words)

It is important to keep records of grievance procedures. These should ...
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Operating grievance procedures (68 words)

} many grievances can be settled informally with line ...
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Appeals (56 words)

} if possible, a more senior manager should handle the ...
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Chapter 12

12. ORGANISING AROUND GRIEVANCES AND DISCIPLINARY ISSUES (615 words)

Unions have always understood that many workplace disputes can best be dealt with collectively through collective bargaining or collective grievances. ...
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Chapter 13

13. MEDIATION (277 words)

The government is strongly in support of greater use of workplace mediation, as it made clear in its response to its 2011 consultation, Resolving ...
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The joint Acas and TUC guidance on mediation (289 words)

The guidance sets out that an impartial mediator “helps two or more people in dispute to attempt to reach an agreement. Any agreement comes from ...
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Chapter 14

14. WHAT THE FUTURE MIGHT HOLD (475 words)

Many reps will already sense, not least from the attacks on facility time, that their representative role in the workplace is viewed with barely ...
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Further information

Sources for further information (262 words)

Department for Business, Innovation and Skills (BIS), 1 Victoria Street, London, SW1H 0ET, Enquiry Unit tel: 020 7215 ...
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