Creating a disciplinary and grievance procedure

A good, well-communicated procedure gives managers guidelines for what to do when things go wrong. The vast majority of workplace issues can and should be dealt with during day-to-day management. It is only when that fails to resolve the problem that it is necessary to turn to the procedure.

There is no such thing as a statutory disciplinary process. Instead, the law requires employers to provide employees with a written statement of their disciplinary and grievance procedures, which includes the activities that might lead to dismissal. This statement (or where it can be found) forms part of the statutory statement of particulars that all employees should receive within two months of starting employment so the legal requirement comes at the start of the employment relationship. The statement of disciplinary and grievance procedures must include the name of the employee they can go to if they are unhappy about a decision under the procedures. Failure to provide these documents can result in the employee being awarded two to four weeks’ pay on top of any other award if they are successful in an employment tribunal.

Formulating a disciplinary policy

A disciplinary policy must be fair and it must meet the needs of your organisation. The Acas Code of Practice (see below) suggests that employers should work with employees and, where appropriate, their representatives to develop the rules and procedures. It stresses that any procedure should be fair and transparent. As well as looking at the types of behaviours you don’t want to see, you also need to look at what response such behaviour would elicit. This varies from gross misconduct, which is conduct that is so serious it makes any future employment or trust impossible – criminal offences such as fraud or fighting might come into this category – to issues that can be dealt with informally. Acas recommends that employees are provided with examples to show the types of behaviour that could result in dismissal.

In most cases disciplinary issues should be dealt with informally by the line manager as they have the day-to-day contact with the employee that enables them to prevent a minor issue escalating into something more serious. This means that line managers must be sufficiently skilled to have the confidence to initiate these types of conversation.

For managers the policy should answer questions such as:

• what to do if a member of staff produces such poor work that it affects the whole department, no matter how much training and coaching they are given

• what to do if someone is persistently absent due to sickness

• what to do if someone is always late without good reason

• how to get staff to resolve issues.

For employees, it should clearly state the necessary steps to take if they face disciplinary action or have a grievance.

The courts may use your disciplinary policy as evidence to show how you view a particular activity or issue. If your policy states that for a particular activity any action taken would fall short of dismissal and you then dismiss someone for that activity, you could find that dismissal being viewed as unfair.

Your disciplinary and grievance procedure should comply with the requirements set out by the comprehensive Acas Code of Practice on Disciplinary and Grievance Procedures which came into force on 11 March 2015. The Code is not statutorily binding but is taken into account by tribunals when dealing with claims.

Tribunals can make an ‘uplift’ (increase of the amount awarded) of 25% to the award for failure to follow the Code. Also, if it is felt that the employee has not followed the Code, their award may be reduced by 25%. The Code gives broad principles rather than stringent rules but there are still issues: for example employers are required to deal with issues ‘promptly’ but does ‘promptly’ mean a week or a month? A Court of Appeal decision says that the more serious the consequences of dismissal for an employee, the more careful the investigation must be, so ‘promptly’ may be a longer period in some cases than in others.

As well as the Code, Acas also produces the Acas Guide to Discipline and Grievance in the Workplace (available from its website), which includes rules for small organisations. Please note that tribunals are only obliged to have regard to the Acas Code of Practice on Disciplinary and Grievance Procedures.

It is important to note that the Acas Code of Practice does not apply in redundancy cases (article 181 onwards).

Writing a disciplinary policy

Stage 1 – identify behaviours that might lead to disciplinary procedures

• health and safety breaches

• performance

• absence

• personal appearance

• use of company equipment

• time keeping

• smoking on or near the premises

• consumption of drugs and alcohol

• discrimination,bullying and harassment

• inappropriate use of social media in the workplace.

Stage 2 – identify examples of behaviours you don’t want and rank them according to seriousness.

Stage 3 – identify the types of disciplinary actions you might take

• word from line manager (most common)

• formal meeting

• official warning

• final warning

• dismissal (rare, only in cases of gross misconduct or after all other stages are exhausted).

Stage 4 – match the action to the seriousness of the behaviour

• make sure it answers managers’questions.

Stage 5 – write it in plain English and make it available

• let employees know where they can find it

• provide the name of the person (or persons, depending on the size of the organisation) they can appeal to.