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Friday, 17 April 2015 20:00

Disciplinary and grievance hearings: what you need to know

Written by  David Renton
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The following is based on some training I recently did for a trade union. I hope it will be useful for anyone who is just starting to become a caseworker and learning to accompany other workers at hearings of this sort.

 

PART 1: UNDERSTANDING DISCIPLINARY AND GRIEVANCE HEARINGS

What is a disciplinary meeting?

A disciplinary meeting is a meeting which has been requested by the employer, usually became a manager is thinking of taking disciplinary action against (i.e. punishing) a worker

What is a grievance meeting?

A grievance meeting is a meeting which has been requested by a worker, either became the worker wants his employer to take disciplinary action against a manager or another worker, or because the worker wants to complain about a decision taken by his employer

What is the relationship between discipline and dismissal?

If an employer wishes to dismiss a worker, then whatever the reason was for the dismissal, ordinarily, the employer should not take any action before first inviting the worker to a meeting.

If an employer wishes to dismiss a worker, there are in UK employment law only six fair reasons for dismissal: capability, conduct, redundancy, retirement, contravention of statute, some other substantial reason (section 98, Employment Rights Act, 1996).

o “Capability” is where a worker is incapable of doing their job, either because of illness or because they lack the skills to do it to the appropriate standard.

o “Conduct” is where a worker has done something wrong (eg stealing, fighting, persistent lateness or absence)

o “Redundancy” is where an employer has less need for a worker to carry out work of a particular kind or in a particular place (section 139, Employment Rights Act, 1996)

Some of these dismissals come about because the employer believes a worker has done something wrong and the employer is considering taking action against her. Those sorts of meetings are called disciplinary meetings.

If an employer wishes to punish a worker, there are two types of actions the employer can take: they can dismiss the worker, or they can subject them to a disciplinary penalty short of dismissal (eg a warning, or a demotion)

What should happen at a disciplinary or grievance hearing?

The answer will depend on what it says in the employer’s disciplinary or grievance procedure. Many employers publish their procedures on their website, and if your employer does not publish theirs, you should ask personnel for a copy of the policy as soon as you know that there is going to be a meeting.

Just for an example of a typical disciplinary procedure: see a London university’s procedure. Amongst other things, the procedure says:
· Many disciplinary problems will be dealt with informally (i.e. between the worker and the manager without a formal meeting). In an informal disciplinary action, the most the manager can do is give the worker an informal warning. If the manager is dealing with the complaint as if it were a formal procedure, at any time, the worker can stop him and say that the hearing should be dealt with formally (allowing them to be accompanied by a co-worker)
· If the process becomes formal then it will be in three stages:
· Stage 1 – investigation. A manager will investigate a complaint against a worker. The manager should report on the outcome of their investigation within 10 days of the complaint being made.
· Stage 2 – formal meeting. The worker should get at least 5 days notice of the meeting. They should be told who will be there from management and what punishments may be made. The worker should be told of their right to be accompanied at the meeting.
· At a formal meeting, the employer can make the following punishments: 1. formal oral warning, 2. first formal written warning, 3. first and final, or final, written warning. 4. dismissal.
· An employer should not dismiss, or give a first and final warning, unless the behaviour is so bad that it would justify immediate dismissal
· Stage 3 – appeal. The worker should appeal in writing. They will get a written response from the original investigating manager at least 5 days notice of the meeting. They should be told who will be there from management and what punishments may be made. The worker should be told of their right to be accompanied at the meeting.

Wherever you work, you should always familiarise yourself with your employer’s disciplinary procedure as it may contain rights which assist you, or the member you are accompanying. For example, the university’s procedure says the following about what trade union reps should or shouldn’t do at hearings. Unlike most employers, whose policies don’t allow for more than one rep, this particular policy does:

“In cases where dismissal may be a possible outcome or in complex cases, the employee may request to be accompanied by a second representative. Such a request should be made in writing to the Director of HR at least two working days in advance of the hearing and will be carefully considered by the School taking account of the particular circumstances of the case. Normally the role of the second representative will be to take notes unless agreed otherwise by the Director of Human Resources.”

Apart from my employer’s procedure, what other rules are there?

Some of the rules regarding disciplinary and grievance hearings are set out in primary legislation (i.e. Acts of Parliament).

Section 10 of the Employment Relations Act 1999 provides that:

Right to be accompanied.
(1) This section applies where a worker—
(a) is required or invited by his employer to attend a disciplinary or grievance hearing, and
(b) reasonably requests to be accompanied at the hearing.
(2) Where this section applies the employer must permit the worker to be accompanied at the hearing by a single companion who—
(a) is chosen by the worker and is within subsection (3),
(b) is to be permitted to address the hearing (but not to answer questions on behalf of the worker), and
(c) is to be permitted to confer with the worker during the hearing.
(3) A person is within this subsection if he is—
(a) employed by a trade union of which he is an official within the meaning of sections 1 and 119 of the Trade Union and Labour Relations (Consolidation) Act 1992,
(b) an official of a trade union (within that meaning) whom the union has reasonably certified in writing as having experience of, or as having received training in, acting as a worker’s companion at disciplinary or grievance hearings, or
(c) another of the employer’s workers.
(4) If—
(a) a worker has a right under this section to be accompanied at a hearing,
(b) his chosen companion will not be available at the time proposed for the hearing by the employer, and
(c) the worker proposes an alternative time which satisfies subsection (5), the employer must postpone the hearing to the time proposed by the worker.
(5) An alternative time must—
(a) be reasonable, and
(b) fall before the end of the period of five working days beginning with the first working day after the day proposed by the employer.
(6) An employer shall permit a worker to take time off during working hours for the purpose of accompanying another of the employer’s workers in accordance with a request under subsection (1)(b).

If you want to find this legislation in its original form then (in common with all the statutes referred to in these notes), it is on the www.legislation.gov.uk website

Some of the rules are contained in guidance provided by ACAS.

The ACAS guidance on disciplinary hearings provides that employers should
· Inform employees of problems
· Notify them of the need to attend a hearing and their right to be accompanied
· Inform them of their right to appeal

The procedure is very similar for dealing with employee’s grievances

You can read the ACAS guidance here

Where an employer or a worker does not comply with the ACAS guidance, and the worker subsequently brings a Tribunal claim which succeeds, the Tribunal may increase or reduce the award by up to 25% (section 207A Trade Union and Labour Relations (Consolidation) Act 1992)

Questions:
o Is it appropriate for an employer to deal with poor attendance by a disabled worker under a disciplinary procedure?
o Should the same procedures be followed if the employer’s misconduct complaint is about a trade union representative?
o If the worker makes a grievance about a decision to dismiss her, should it be conducted under the disciplinary or grievance procedures?
o What if the worker’s rep is on holiday for 5 days and the employer says: “I am not rescheduling the disciplinary hearing?”
o What if the employer says “you can have a colleague to take notes but I’m not allowing them to speak at your disciplinary hearing”?

 

Last modified on Friday, 17 April 2015 20:04
David Renton

David Renton

Barrister 
Garden Court Chambers 

Website: www.gardencourtchambers.co.uk/barristers/david_renton.cfm E-mail: This e-mail address is being protected from spambots. You need JavaScript enabled to view it
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