UK equality watchdog the Equality and Human Rights Commission (EHRC) has issued new technical guidance for employers, to help them protect staff from sexual harassment and victimisation at work. Launching the guidance, EHRC chief executive Rebecca...
It is important for any employer to follow proper procedures when disciplining staff or dealing with a grievance. Any issues must be properly investigated and a transparent procedure followed. We set out below our recommendations for such procedures.
An Employer should have written procedures for both processes, and ensure that they follow them. These procedures should not form part of the contract of employment. We recommend that the contract should refer to disciplinary and grievance procedures, but confirm that they do not form part of the contract. If they are part of a contract, and an employer, by oversight or mistake, does not follow them exactly, this could give an employee an opportunity to claim breach of contract. This is why it is important to keep them separate.
It is useful for the disciplinary procedure to define “misconduct” and “gross misconduct” so it is clear to both parties how the employer views certain types of conduct.
If an employee is accused of serious misconduct, it may be appropriate to suspend them from work pending a disciplinary hearing. They would have to be suspended on full pay, and the contract of employment should provide for suspension. To suspend an employee without a right to do so in the contract of employment may be found to be a breach of contract.
At an initial stage, and particularly if the conduct is not serious, an Employer may have an informal discussion with an Employee to try to address an issue. This would be a meeting and the employer would advise the employee at the outset at the meeting that this was an informal discussion to try to resolve the problem. The employer must make clear that no disciplinary action will follow from this and the intention is to avoid the necessity of taking any action. With such an informal discussion, the employee would not be entitled to have a representative present at a meeting.
Formal Disciplinary Procedure
Once an employer is notified of a problem they have a duty to investigate the allegations made against an employee. It is preferable to have one individual investigate the allegations, a second individual to carry out a disciplinary hearing, and a third, if possible more senior, individual take any appeal.
As part of the investigation, the investigator needs to meet with the employee to explain they are investigating the employee’s conduct and to ask their side of the story. The investigator also needs to check who the employee considers the investigator should speak to and/or what documents or records the investigator should review. An employee has no right to have a representative present at an investigation meeting.
The Investigator should then interview other witnesses and/or read other documents and records and make a report to the person taking the Disciplinary Hearing.
The employee must be invited to a disciplinary hearing by a letter setting out exactly what the employee is accused of. The letter should include copies of any witness statements or other evidence that will be referred to at the disciplinary hearing and a copy of the Disciplinary Procedure. If the allegations are serious, and could result in the employee’s dismissal, the letter needs to warn the employee that if the allegations were found to be true, this could result in the employee’s dismissal (make sure the letter only states the employee “could” be dismissed – as no decision has yet been made). The letter must confirm that the employee is entitled to have a work colleague or Trade Union Representative present with them.
The letter will set a date and time for the hearing, which can be adjourned if the employee has a good reason to request an adjournment. A good reason might be that their Trade Union Representative or work colleague is not available at that date and time, or they are absent due to sickness or something similar.
Hold the meeting and we recommend a person be present purely to take notes. Alternatively, agree with the employee that the meeting can be recorded, but somebody will have to transcribe the recording. The meeting should be conducted fairly by putting the allegations to the employee based on the evidence gathered at the investigation stage. The employee should be allow to give a full account of his/her version of events. All relevant witnesses should be questioned and allowed to speak. The notes should be as close to verbatim as possible, indicating what each party has said throughout the meeting. It is good practice to let the employee have a copy of the notes once they are completed.
If the hearing reveals new evidence, and the employer needs to look into that further, the hearing can be adjourned to allow the employer to look at new information, and re-convened at a later date.
The person taking the disciplinary hearing should not make their decision at that meeting. It is best to take a little time to consider the evidence that has been heard at the meeting and come to the decision. If the matter is relatively straight forward, a decision can be reached later that day or overnight. If it is more complicated, more time may be needed. The employee should be given the decision in writing (it can be given verbally but followed up in writing), and the decision letter should set out a full explanation as to how and why that decision has been reached. The letter should also confirm the employee has a right of appeal and confirm by when the appeal should be raised in writing. Assuming you have Disciplinary and Grievance Procedures, the procedures should set out how long an employee has to raise an appeal. If there is no procedure, or no period in the procedure, then allowing no less than 5 working days, and we would suggest no more than 10 working days, from the employees receipt of the decision is reasonable.
If the employee raises an appeal, then the appeal should be taken by a third person, and preferably senior to the person taking the original disciplinary hearing. The appeal letter will invite the employee to an appeal meeting and again confirm the employee’s right to be accompanied by a work colleague or Trade Union Representative. At the meeting, the person hearing the appeal should take the employee through all the Grounds of Appeal they have raised to make sure they understand the employee’s objections. Again, a note-taker should be present.
As with the Disciplinary Hearing, we would recommend the decision not be given there and then but time taken to consider the decision.
As with the disciplinary decision, this should be in writing and set out a full explanation as to how and why the decision has been reached. Unless your disciplinary procedure provides for any further appeal, there is no further appeal after this decision.
A grievance procedure follows much the same process as the disciplinary procedure, but clearly if the employee has raised a grievance against an individual, that individual should not be the investigator nor take any grievance hearings or appeal hearings.
If an employee complains about the behaviour of another employee towards them, if possible, separate them in the workplace pending completing the grievance procedure.
It is best, if possible, to resolve grievances informally initially, and mediation should be considered if employees have issues between them. If that is not possible, follow a procedure as set out above, with an investigation, a grievance hearing and an appeal if the employee does not accept the outcome. At a grievance hearing, and any appeal, the employee is entitled to be accompanied by a work colleague or a Trade Union Representative, and letters inviting them to those meeting should confirm that.
For further information and for advice on employment law issues in London and Nationally, please contact:
Marina Vincent on 020 8422 5678