Do you want to end up in an employment tribunal? To avoid the cost in time, energy and money you should do two things.
Firstly, get some procedures in place for dealing with discipline and grievances and, secondly talk to your employees before taking any action.
Small firms often find it easier to deal with problems informally. Just a chat with a colleague can often resolve an issue. However, if a problem does persist you will need clear procedures to follow.
These procedures should aim to help employees improve their performance or conduct and resolve any grievances they might have. The Acas advisory handbook Discipline and grievances at work can help you set up disciplinary and grievance procedures.
Everything that happens as part of the disciplinary process should happen within a supportive framework designed to improve performance and behaviour rather than impose sanctions.
Talking and counselling
The best way to diffuse difficult situations is often to have a quiet word and find out what’s really going on. This can be done discreetly and without the emotion that is often associated with a disciplinary meeting.
The disciplinary meeting
If informal action does not work or a problem is sufficiently serious then formal action is needed. A meeting should be held within the context of a careful consideration of all the facts, the employee’s previous record and the organisation’s standards on behaviour and performance.
Give the employee time to prepare for the meeting and remind them of their right to be accompanied. Clearly state what the complaint is against the employee, go through the evidence and give the employee the chance to respond. The key to any disciplinary meeting is listening – if the employer feels there is a lot to digest then it is worth adjourning to allow more time to reflect on the case.
Any action should be taken within the right context – have there been any similar cases in the past, and are there any special circumstances to be taken into account?
For unsatisfactory performance the first penalty should take the form of an improvement note. This sets out the nature of the problem, the improvement required, and the timescale for achieving the improvement. It should also set the review date and give details of any support the employer will offer.
It is important that the employee realises that this note represents the first stage of a formal procedure and that failure to improve could result in a final written warning and, ultimately, dismissal.
In cases of misconduct employees should be given a written warning setting out the nature of the misconduct and the change in behaviour required. The warning should also inform the employee that a final written warning may be considered if there is no sustained satisfactory improvement or change.
A record of the warning should be kept, but it should be disregarded for disciplinary purposes after a specified period (eg, six months).
If an employee’s misconduct or unsatisfactory performance is sufficiently serious it may be justifiable to move directly to a final written warning. Such a warning should normally remain current for a specified period, for example, 12 months, and contain a statement that further misconduct or poor performance may lead to dismissal.
The opportunity to appeal against a disciplinary decision is one of the key ingredients of what is often called ‘reasonable behaviour’.
Reasonable behaviour is a yardstick tribunals use to assess how employers have dealt with a case. As well as the right of appeal it includes other principles of natural justice, such as letting employees have their say and the right to be accompanied to disciplinary and grievance meetings.
The statutory procedure
If you have already given a final warning and decided to dismiss an employee – or impose action short of dismissal (such as demotion or loss of pay) – you have to follow a statutory procedure.
This means you must do three things:
If you have not followed these three steps the tribunal may well judge the dismissal ‘automatically unfair’. The compensation may increase or decrease – by between 10-50% - depending on whether the employer or employee failed to adhere to the new law.
Grievance procedures are used by employees to help resolve problems they may have with their employer.
Anybody working in an organisation may, at some time, have problems or concerns about their work, working conditions or relationships with colleagues that they wish to talk about with management.
Employees should aim to settle most grievances informally with their line manager. But, if a grievance cannot be settled informally, the employee should raise it formally with management. Hopefully the issue can be resolved quickly.
However if an employee wishes to use the grievance as the basis of a complaint to an employment tribunal they must first complete step 1 of the statutory grievance procedure. This means they have to tell the employer about their grievance in writing.
The other steps involve holding a meeting to discuss the grievance and, if the employee requests an appeal, holding an appeal meeting to review the complaint.
Many employers may wish to have separate grievance procedures for dealing with sensitive issues such as bullying and harassment.
To keep informed about changes in the law and how to apply the new laws to your workplace, Acas can help. Call 08457 47 47 47 or visit www.acas.org.uk to find out about our training sessions, publications and to register for our free online learning package on Discipline and Grievance.