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Disciplinary, Capability and Grievance Procedures

Ignoring underperformance, absence, misconduct, and grievances is bad for business and affects staff morale. Lengthy suspensions waste salary costs and leave organisations vulnerable to allegations of unnecessary delay. Grievances and whistleblowing should be investigated swiftly and effectively to best protect the organisation. Issues such as this are disruptive to the business and, mishandled, can lead to Tribunal claims for Unfair Dismissal, Constructive Dismissal, Discrimination and under legislation protecting whistleblowers.

As well as drafting effective procedures for you to follow in such situations, we can coach you through or even manage the process of performance or absence management, disciplinary procedures or investigating grievances and whistleblowing, allowing you to get on with your day to day business. We will help you follow a fair procedure, gather and assess evidence and reach a conclusion that is right for your organisation. Where appropriate, we can help you with negotiating solutions that benefit both parties.

Advice from Solicitors is privileged from disclosure to your opponent if there were to be any litigation as a result of the process. This does not apply to Employment Consultancies or other advisors, whose emails and other communications would need to be disclosed to an employee who brought a claim.

It is usually possible to agree fixed fees to draft Disciplinary, Capability and Grievance Procedures. Where fixed fees are not possible (such as when dealing with an open ended investigation), we will provide the best estimate we can and keep you fully informed about the costs you are likely to incur. We can agree to cap fees for stages of an investigation or fixed fees for unbundled advice. Disciplinary, Capability and Grievance Procedures are included in our retainer offering for employment matters.

Contact us on 020 7935 3522, lt@freemanssolicitors.net or using the contact form

FAQs about Disciplinary Procedures

Why are disciplinary procedures important?
An employee may be able to claim Unfair Dismissal if they are not first taken through an ACAS compliant Disciplinary Procedure. Disciplinary Procedures can help managers and employees understand the process of investigating misconduct, and set appropriate disciplinary rules and sanctions for non-compliance.

Are disciplinary procedures contractual?
Whilst the Contract of Employment should refer to an organisation’s Disciplinary Procedure, it does not itself have to be contractual. We recommend that Disciplinary Procedures are expressed not to be contractual so that they can be easily updated and to avoid claims for breach of contract if they are not followed to the letter.

How do disciplinary procedures work?
The general principle is that allegations of misconduct should be investigated before a disciplinary hearing is conducted. The employee should be sent details of the allegations and any evidence from the investigation in advance of the disciplinary hearing. They should be given the opportunity to present their case and any evidence at that disciplinary hearing before a decision is made. The person conducting the hearing will then need to decide whether the employee has committed misconduct and if so, on an appropriate sanction. It is usually considered unfair to dismiss for a first “offence” unless it is gross misconduct.

Who conducts a disciplinary hearing?
If possible, different people should conduct the investigation, disciplinary and any appeal. It should be someone with sufficient seniority to make decisions, and someone familiar with the disciplinary procedure. They may want to have someone from HR present to advise.

Who can attend disciplinary hearing?
Employees have a statutory right to be accompanied by a colleague or trade union representative. They may ask for someone else to attend, such as a relative, friend or legal representative. It can be sensible to adjust the formal procedure when there are language problems or the employee has a disability, particularly a mental health condition. Employers can however legitimately refuse companions that are not colleagues or trade union representatives.

Are disciplinary meetings confidential?
It is good practice to ensure that disciplinary hearings remain as confidential as possible: it might be considered a breach of contract if unsubstantiated allegations are widely discussed amongst the workforce, making it difficult for an employee to return to work once the disciplinary procedure has concluded.

Can disciplinary meetings be recorded?
There is nothing to stop either party recording a disciplinary hearing, though this should be done openly with the other party’s consent. A recording can be good evidence of what happened if there is any dispute as to what was said.

When can a disciplinary hearing be postponed?
A first request to postpone a disciplinary hearing should usually be granted. The employee has a statutory right to a postponement if their companion is not available. Consider the reason for the postponement request and whether the hearing has been postponed before. Ultimately, if the employee is stalling and making unreasonable requests to postpone, a request can be refused.

Can a disciplinary hearing be held in the employee’s absence?
It can be possible to hold a disciplinary hearing in an employee’s absence when they have made unreasonable requests to postpone or simply failed to turn up to a hearing. However, because this denies the employee the right of reply to the misconduct allegations, a decision to hold the disciplinary hearing in their absence should not be taken lightly. The employee should always be given the right of appeal, and it may be appropriate to cancel any sanction and reschedule the hearing if it is subsequently discovered that the employee had a good reason for non-attendance.

Can a disciplinary hearing be held when the employee is off sick?
It is not unusual for employees to claim that they are too sick to attend a disciplinary hearing. If they are genuinely unwell, it might be appropriate to postpone the hearing. However, there is a difference between being too sick to work and too sick to attend a hearing. If there is any doubt, the employee should be asked to provide a note from their doctor that they are unable to attend the disciplinary hearing.

Can a disciplinary hearing be held when the employee is pregnant?
There is nothing to prevent a disciplinary procedure involving a pregnant employee. Care should however be taken to avoid any inference that the employee is being treated unfavourably because of her pregnancy, pregnancy related illness or because she will be taking maternity leave.

When does a disciplinary warning expire?
Any disciplinary warning should state a length of time for which they will remain “live”. It is common for first warnings to last 6 months and final warnings to last 12 months, though the length of time should be tailored to the particular circumstances. It is possible for a final written warning to last more than 12 months if the misconduct is particularly serious and giving a warning rather than dismissal is seen as an act of leniency. It might also be appropriate to give an indefinite warning where the employee has a history of misconduct taking place just after prior warnings had lapsed.

FAQs about Capability and Performance Procedures

What are capability procedures?
Capability procedures should be used to consider the employee’s capability to do the job. This might be because of frequent or lengthy absences from work with ill health or because they are not performing to an acceptable standard.

Can we hold a capability procedure when an employee says they have a disability?
The Equality Act defines a disability as a long term condition (likely to last at least 12 months or a terminal illness) that has a substantial effect on day to day life. Cancers, MS and HIV are deemed to be disabilities. Many employees with long term sickness will have a disability, many will not. Employers have a duty to make reasonable adjustments when their usual practices might cause substantial disadvantage to a disabled person. Holding a capability procedure because of disability or for a reason arising from a disability (such as sick leave or a perception that the employee will not be able to perform to past standards) could be unlawful unless it can be justified on objective grounds.

That does not mean that it is not possible to hold a capability procedure for a disabled employee. Care must be taken to make reasonable adjustments and to ensure that any action taken can be justified as a proportionate way of achieving the employer’s legitimate aim.

Can we hold a capability procedure when an employee has depression?
Depression and other similar mental health conditions can amount to a disability under the Equality Act. We suggest that employers tread carefully when employees present with depression and mental health complaints, making appropriate reasonable adjustments and ensuring that any action taken can be justified as a proportionate way of achieving the employer’s legitimate aim. It is however possible to hold a capability procedure for an employee with depression or other mental health condition.

What is a Performance Improvement Plan?
A Performance Improvement Plan or PIP is used when an employee is not performing to an acceptable standard. The first stage of the capability procedure is to explain to the employee that they are not performing well, why this is the case and how they can improve. The employee should be given a (time limited) warning that they must improve. The Performance Improvement Plan sets out specific goals and timescales for how the employee must improve their performance.

When should we use a Performance Improvement Plan?
A Performance Improvement Plan is appropriate when an employee is not performing to an acceptable standard. It should set out specific goals and timescales for how the employee must improve their performance, making the consequence of not doing so clear.

How should we conduct a Performance Improvement Plan?
ACAS recommend that at least two warnings are given before dismissing for poor performance, unless there is gross negligence. A Performance Improvement Plan should be set up with this in mind, with the PIP following the first warning. A reasonable timescale should be allowed for the employee to improve, with specific measurable targets for the employee to achieve. A follow up meeting should follow at the end of the PIP, to discuss whether targets have been met and if not, a final warning should be given. A further timescale should then be set with clear targets to be met if dismissal is to be avoided.

FAQs about Grievance Procedures

What are Grievance Procedures?
A Grievance Procedure allows an employee raise a complaint about their employment. It could be something as simple as underpayment of wages or as complex as harassment, discrimination or victimisation. The employer should investigate the complaint and try to find a resolution if the complaint is upheld.

Why are Grievance Procedures important?
Compensation for claims such as discrimination can be increased by 25% if employers do not follow an ACAS compliant Grievance Procedure. It is important to take grievances seriously and investigate them fully, providing an appeal if the employee is not satisfied with the initial outcome.

How does a Grievance Procedure work?
The Grievance Procedure should ask that an employee put their complaint in writing. A manager should then be appointed to investigate the complaint. The employee should be invited to a meeting to discuss their grievance. It may then be necessary to investigate further by speaking to other employees or reviewing documents. A further meeting should be called to give the outcome of the grievance, which might be that it is not upheld or might be proposing a resolution. The outcome should be confirmed in writing and the employee offered a right of appeal if they are not satisfied.

Who should investigate a Grievance?
It should be someone independent of the subject matter of the complaint and of sufficient seniority to propose a resolution but remembering that a more senior manager might be needed to deal with an appeal. No-one named in the Grievance should be appointed to investigate it.

Who should deal with a Grievance about a manager?
The person dealing should be independent of and at least the same seniority as the manager about whom the Grievance is raised. A manager from a different department might be appropriate. If there is no-one independent at the same level, a more senior manager should deal with it, remembering that a yet more senior manager may need to deal with an appeal.

Who should attend a Grievance meeting?
Employees have a statutory right to be accompanied by a colleague or trade union representative. They may ask for someone else to attend, such as a relative, friend or legal representative. It can be sensible to adjust the formal procedure when there are language problems or the employee has a disability, particularly a mental health condition. Employers can however legitimately refuse companions that are not colleagues or trade union representatives.

Can a Grievance meeting be recorded?
There is nothing to stop either party recording a Grievance hearing, though this should be done openly with the other party’s consent. A recording can be good evidence of what happened if there is any dispute as to what was said.