Hopefully you will never be subject to a disciplinary or have to bring a grievance. Unfortunately for many of our clients this is not the case. If you have been discriminated against or subjected to detriments in the workplace, then the Employment Tribunal will expect you to try and resolve your problems through your employer’s internal grievance procedures first, unless the treatment is so bad that you are compelled to resign because your contract of employment has been fundamentally breached. (Not a course of action that we recommend without taking legal advice). Sadly, on occasion, an employer may weaponise their disciplinary process to try and find a way to terminate your employment for allegedly fair reasons, when actually it is a pretext for unlawful discriminatory acts.
Here is a short guide on what to expect for disciplinary and grievance procedures. If you understand how to properly prepare you give yourself the best chance of either defending a disciplinary allegation or proving that your grievance is justified and that the employer should take action to address your complaints.
Disciplinary procedures
Disciplinary problems are usually concerns that your employer has about your behaviour at work, the way in which you do your job or about absence from work. Minor problems should be sorted out quickly by informal discussions. However, if the alleged issue is for example misconduct, your employer may use a formal disciplinary process to discipline you. Most employers have some sort of disciplinary procedure, which should replicate the minimum steps set out in the ACAS Code of Practice on disciplinary & grievance procedures.
As soon as your employer becomes aware of a problem and is thinking about the possibility of disciplinary action, they should conduct a full investigation. This could mean holding an investigatory meeting with you (and perhaps your co-workers) in order to gather the facts. For example, your employer may have received a report that a client has complained about you because you were rude, they will want to talk to both you, the client and any other witnesses to find out what happened.
Under a fair disciplinary procedure, you should receive advance notice of the investigatory meeting and have sufficient time to prepare for it. The investigatory meeting should, wherever possible, be conducted by a more senior member of staff or management than you, e.g., your line manager or someone from HR, and should not by itself result in any disciplinary action, even if during the meeting you admit the allegations made.
A formal disciplinary meeting is still required before your employer decides what action to take. Your employer should not decide from the outset that you have committed the offence and then set about gathering only evidence to support that view.
You do not have a legal right to be accompanied to an investigatory or ‘fact-finding’ meeting unless the company’s disciplinary procedure provides for this expressly. It could be a reasonable adjustment to be accompanied if, for example you are deaf and need a sign interpreter or if you are suffering from stress and anxiety and need emotional support to be able to answer the employer’s questions properly. Employers do need to think about reasonable adjustments to the process so that there are no unfair barriers for disabled employees.
Sometimes you might be suspended pending a disciplinary investigation, but your employer will have to have a good reason to believe that this is necessary, such that a complainant might feel pressure if you remain at work, or you might interfere with their business. Suspension is normally on full pay while the investigation is being carried out. The Acas Code says that “the suspension period should be as brief as possible and kept under review”. You should also be told that being suspended with pay does not mean you are assumed to be guilty of the offence. Suspension is a harsh sanction and should only be invoked if necessary. It is rarely a neutral act in that it can signal to others that you are guilty as charged or make it difficult for you to return to work if the charges are dropped and the suspension is lifted.
If, following a full investigation your employer decides to take disciplinary action, they should tell you this in writing and confirm what it is exactly that may amount to misconduct, poor performance or whatever the reason they give for the disciplinary is. They should give you enough information so that you can prepare your response and be able to answer questions at a disciplinary hearing to defend your position. Your invitation to a disciplinary hearing should confirm the time, date and place of the disciplinary meeting, that you have the right to be accompanied by a trade union representative or work colleague, who will conduct the hearing and what sanction you might get, such as a warning or in serious cases dismissal.
At the disciplinary meeting, your employer should explain the complaint(s) against you and go through the evidence they have collected. You should be allowed to respond to the allegations, ask questions about anything that arises in the evidence and be permitted to put your own case and explain your position. Your employer should allow colleagues who want to give evidence in support of your case to speak and you can ask questions of anyone who gives evidence for your employer.
After the meeting your employer will decide on the appropriate action to take, if any. What is considered appropriate will depend on the nature and severity of the complaint. If, for instance, your employer decides to take action because of your misconduct or poor performance, it would be usual to receive a written warning for a fixed period of time. If your behaviour involves serious misconduct, such as stealing from your employer, your employer may decide to dismiss you, either with or without notice.
If your employer’s decision is that you should be dismissed, they must write to you setting out the reasons for your dismissal, the date on which your employment will end and whether you will receive any notice pay. Behaviour which is categorised as “gross misconduct” may be considered so serious that your employer dismisses you without paying you or requiring you to work your notice period.
If you are unhappy with your employer’s decision and/or with the action they have taken, you should tell them in writing that you want to appeal and state your reasons. The employer’s disciplinary policy and the letter outlining the decision will state how long you have to appeal. If you need extra time as a reasonable adjustment it is appropriate to ask for this and a reasonable employer will accept that you may need more preparation time. The process should not be used to harass you. You have a right to be treated fairly even if you are being disciplined. Your employer must look again at their decision and arrange a meeting to discuss this with you (called the ‘appeal meeting’). Again you have the right to be accompanied and the meeting should be held as soon as is practically possible. However, the appeal won’t be a rehearing, it is a hearing to see whether it was reasonable for the dismissing officer to have imposed a warning or terminated your employment based on the evidence considered at the disciplinary hearing.
Sometimes our clients ask us if it is worth appealing and most often the answer is yes because it is not only a chance to get the employer to reconsider their decision but it lets a Tribunal know that you did not agree with the decision, should you wish to pursue a claim for unfair dismissal.
Grievance procedures
If you have a problem, concern or complaint at work, you might want to bring it to your employer’s attention. This is known as ‘raising a grievance’. The best option is always to seek to informally resolve any issue but sometimes this is not practical or possible for a variety of reasons. You are entitled to raise a grievance and it is implied in every contract of employment that your employer owes you a duty to promptly deal with any issue you raise. Raising a grievance is not a neutral act either. You ought to take legal advice before doing this so that you understand the possible ramifications for you and your employment. Trying to resolve matters without a formal process or via workplace mediation is more likely to be successful but if you have tried this and failed a formal grievance process might be your only option.
Our clients often have to raise grievances because they have been bullied or harassed by a co-worker or manager, because their employer has failed to make reasonable adjustments or where there have been changes to their terms and conditions which they did not agree.
Most employers will have a grievance procedure, however again it should at least have the minimum procedural steps as set out in the Acas Code.
If you decide to raise a grievance, you need to set out in writing in as much detail as possible what the issue is about as well as the resolution you are seeking. Your employer should arrange a meeting at a reasonable time and place to discuss your grievance and inform you of this in writing. You have a right to ask either your trade union rep or a work colleague to go along to the meeting with you. Sometimes an employer will appoint an investigator who will prepare a report that is then considered by the employee appointed as the grievance officer. The grievance officer will consider all the representations and decide if the grievance is upheld or not. After the meeting, the grievance officer should write to you, telling you what they have decided to do about your grievance and how it will be addressed.
Sometimes they will make recommendations for action to be taken, for mediation or workplace assessments for reasonable adjustments and similar. If your grievance or part of it is not upheld the letter notifying you of this should inform you of your right to appeal.
If you don’t agree with your employer’s decision on your grievance or with the action taken you should appeal. To appeal you simply write a letter to your employer saying that you are appealing against their decision and explain why you don’t agree with it. Again, you may feel that it is pointless to appeal because the employer won’t change their mind. But the Tribunal will want to see that you have exhausted all the internal processes available to you unless there is a good reason not to, for example you are so unwell that you cannot participate further in such a procedure. It can also affect your compensation in a Tribunal if you do not follow the process and appeal.
If you do appeal, your employer should arrange a further meeting to discuss your appeal. The meeting should be conducted by a different person who is more senior than the person who conducted your disciplinary hearing, for example, a company director or group manager. The Acas Code requires that appeals be handled “impartially” so whoever deals with your appeal should approach it with an open mind, review the available evidence and take account of any new information before reaching a final decision.
If you ignore or refuse to follow the steps set out in the Acas code, you could lose out on compensation that you would otherwise be entitled to receive for a successful Tribunal claim. Equally, if you follow the steps in the Code and your employer doesn’t, a tribunal can increase the compensation paid to you for a successful claim. The amount could be raised or lowered by up to 25%.
If you are having problems at work, then we are here to help. Navigating these procedures is not easy especially if you have been made unwell by what has happened to you at work. We try to alleviate our clients’ stress and help them prepare their cases so that they have the best chances of getting the best possible outcome. Sometimes an employer won’t change their decision, but getting legal help can have the benefit of setting up the factual basis for a more successful Tribunal claim or finding a non-legal solution so you can move on with your life.
This blog was written by Anita Vadgama, Partner and Solicitor for didlaw.
