As an employer, one of the most challenging aspects of managing your employees can be dealing with grievance and disciplinary processes. How do you avoid those processes exacerbating your staffing issues or becoming a tribunal claim?
Documenting grievance and disciplinary processes correctly is crucial.
The role these processes play in Employment Tribunal claims
Even if they are not the basis of a claim, grievance and disciplinary processes commonly feature in evidence before an Employment Tribunal.
They can be a rich evidential seam.
- Did the claimant say the same thing in their grievance as they are saying now?
- Did witnesses say the same thing?
- Did the manager at the disciplinary hearing say something inappropriate or demonstrate bias in some way?
The need for a disciplinary and grievance process
In WA Goold (Pearmak) Ltd v McConnell and anor 1995 IRLR 516, EAT the court concluded that there was an implied term in an employment contract that:
- the employer would reasonably and promptly provide employees a reasonable opportunity to obtain redress through a grievance process, and
- the failure to have such a process was a breach of contract entitling the employees to resign and claim constructive dismissal.
In part that relied on the requirement for employers to provide a statement of particulars that included details of a disciplinary and grievance process (now contained in s1 Employment Rights Act 1996).
- Since April 2009, Employment Tribunals have had the power to increase or decrease awards for compensation by up to 25% where there has been an unreasonable failure, by either party, to comply with the ACAS Code of Practice on disciplinary and grievance procedures. Section 207A Trade Union Labour Relations(Consolidation)Act 1992.
- Employment Tribunals must consider the ACAS Code which sets out the basic requirements of fairness that will be applicable in most cases.
- The code is supplemented by the ACAS Guide to discipline and grievances at work, although that does not have the same status. The Employment Tribunal is not required to take into account the guide in the same way, but it contains more detailed advice and guidance.
How can you achieve ‘fairness’?
The ACAS Code defines fairness as:
- being prompt
- consistent
- with necessary investigations
- keeping employees appropriately informed (and allowing them to put their case)
- allowing employees to be accompanied
- making provision for an appeal
The House of Lords’ decision in Polkey v AE Dayton Services Ltd 1988 ICR 142, HL, firmly establishes procedural fairness as an integral part of the reasonableness test under section 98(4) of the Employment Rights Act 1996.
Being prompt
What can an employer do to deal with a grievance and disciplinary process promptly?
- It is sensible to appoint someone to be responsible for timekeeping of the whole process. Sometimes processes fail because no-one feels it is their responsibility to ensure it does not, or no-one feels they have the power to enforce compliance with a policy or practice.
- Think about what might be done to make things quicker or easier.
- Can some evidence be in written form only (rather than a meeting with a witness)?
- Can any meeting or hearing be held remotely?
- If it is difficult to find a time that is convenient for all participants, can the process be staggered over different days?
- Keep good records. If the delay is because of an employee’s request, keep a record of that, in case there is an allegation of unreasonable delay.
Consistency
Having a written policy provides for consistency in how rules and procedures are understood by the employer and employee.
A policy should include:
- timescales: seemingly no process ever runs to the timeframes proposed, but it is sensible for timeframes to be set out
- expected standards of behaviour and performance: in dismissals for capability or conduct, tribunals will want to know that the employee did know, or could reasonably have known, what was expected of them.
- sanctions: a disciplinary policy should set out the available sanctions and examples, particularly in the case of gross misconduct.
Keep the policy constantly in mind and try to ensure compliance. Failure to comply can form the basis of a claim itself (eg constructive dismissal) or evidence in support of a claim.
Written record-keeping
The ACAS Code states that employers would be well advised to keep a written record of any disciplinary or grievances cases they deal with. The significance of a written record may be relevant in various ways.
In the case of a grievance, a record of the complaint or issue being raised by the employee, a written record of disciplinary or grievance cases can show:
- what the employer knew or ought to have known at the time, and whether, therefore, the steps it took were reasonable.
- consistency between the employee’s account then and the case before the Employment Tribunal.
- whether, if applicable, the grievance amounted to a protected interest disclosure in a whistleblowing claim, or a protected act in a victimisation claim.
- whether the effect was to put the employer on notice of a disability or potential disability.
In a disciplinary context (and a grievance process) we can add:
- whether the process was fair - eg was the chairperson overbearing or oppressive/was the employee given every opportunity to put their case?
- were issues raised that might require further subsequent investigation?
Try to have a note-taker who is independent and for whom note-taking is their only function. Keeping a note while also being involved in some other way makes the note less likely to be reliable.
- Notes should be verbatim. Anything else leaves room for ambiguity and interpretation.
- Handwritten notes should be typed up, at the very least for the tribunal. Handwritten notes are more difficult to read and this takes up a judge’s often limited time.
- Ask the employee to approve the minutes and insist upon approval or comment. Claimants often challenge the accuracy of a minute in tribunal proceedings. If the minutes were approved nearer the time, that argument might fall away.
Electronic recording
Employers should consider if it is sensible to record disciplinary and grievance meetings or investigations by audio or video recording. You must obtain consent before doing so.
Recording ought to avoid any (or at least reduce) much dispute as to what was said.
But it is likely to result in additional time and expense eg considering the recording and any transcript.
Nevertheless, employers should consider recording as a reasonable adjustment where, for example, an employee’s disability affects their ability to process written information or if they would find it difficult to keep accurate notes themselves.
Covert recordings
The smartphone has made the covert recording of meetings, not just grievances and disciplinary hearings, relatively commonplace.
You should have a policy banning such recording, other than for the reasonable adjustment point above, and give a warning at the start of meeting.
The EAT’s decision in Chairman and Governors of Amwell View School v Dougherty 2007 ICR 135, EAT, is authority for the proposition that such recordings are not, merely because of their covert origins, inadmissible in the Employment Tribunal.
On the facts of that case, the EAT held that the claimant could not adduce secretly obtained recordings of the panel’s private deliberations on the basis of public interest.
However, in Punjab National Bank v Gosain EAT 0003/14 the EAT held that an employment judge had been entitled to distinguish Amwell when ordering that a covert tape-recording, said to have been made during an employer’s private deliberations concerning a grievance and disciplinary hearing should be admitted into evidence.
Investigations
The ACAS Code states:
It is important to carry out necessary investigations of potential disciplinary matters without unreasonable delay to establish the facts of the case. In some cases this will require the holding of an investigatory meeting with the employee before proceeding to any disciplinary hearing. In others, the investigatory stage will be the collation of evidence by the employer for use at any disciplinary hearing.
Grievances are essentially the same. In many cases it will be sensible to hold an investigatory meeting with the grievance-maker, but often also with others.
- In misconduct cases, where practicable, different people should carry out the investigation and disciplinary hearing (ACAS Code).
- There should then be a decision on whether there is a case to answer in a disciplinary case.
- Best practice dictates that the decision, and the process by which it is reached, should be recorded. (This document is very likely to be disclosable in tribunal proceedings).
- In any event, the employer should inform the relevant employee when it has concluded that there is a case to answer, and why.
Keeping the employee informed
The key, in the context of disciplinary process, is that the employee knows what allegations they face.
- The clearer and more narrowly defined the allegation, the better. Aim for something that has the precision of a criminal charge or a civil pleading.
- There should be a date or range of dates set out for the relevant allegation.
- The allegation should be, ideally, one referenced in any code of conduct or policy and the allegation itself should refer to that code.
In grievances, let employees know what progress is.
Right to be accompanied
The right for an employee to be accompanied is contained in the Employment Relations Act 1999. This is important.
Failure to allow an individual to be accompanied creates a distinct penalty for employers.
In Talon Engineering Ltd v Smith [2018] [2018] 3 WLUK 486 EAT, the tribunal concluded that an employee's dismissal was unfair by the unreasonable refusal to adjourn a disciplinary hearing for less than 2 weeks, to enable the union representative to attend.
Make a decision
The Employment Tribunal does not, at least in the context of unfair dismissal, expect you to make the right decision, only a decision that is within the band of reasonable responses.
- Make sure you consider all the evidence.
- Give clear reasons for the decision. Make it clear that you have considered all the evidence and where you do not accept any particular proposition, explain why.
- Where you discount something then say why.
Appeal
- Make provision for an appeal.
- Have a policy that explains how appeals are dealt with. Is it a rehearing of the whole “case” or just a review of the first decision? Either is permissible, but everyone needs to know which it is.
- Ensure that the person conducting the appeal is sufficiently qualified and independent.
Nikolas Clarke is a barrister at Field Court Chambers.