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Disciplinary, Capability and Grievance Procedures

When facing a Disciplinary or Capability procedure that might affect your ongoing employment, you may well want to take advice about how best to present your case. Our employment lawyers bring their extensive experience of Employment Tribunal claims to such advice, equipping you with the best possible case to put to your employer.

You might also want help raising a Grievance about a problem at work. Our employment lawyers’ analytical and drafting skills will ensure that your complaints are presented in the most persuasive way possible, identifying the key problems and any evidence to support your Grievance.

Faced with a Disciplinary, Capability or Grievance procedure, you might also want advice about settling the dispute with your employer without having to go through an adversarial procedure. Our employment lawyers can advise regarding Settlement Agreements and negotiated exits as an alternative.

Our employment lawyers are based in our London office but can also see you at our Watford Office.

If you need advice regarding a Disciplinary, Capability or Grievance procedure, contact us on 020 7935 3522, lt@freemanssolicitors.net or using the contact form

FAQs about Disciplinary, Capability or Grievance procedures

Who can attend a disciplinary, capability or grievance hearing? Can I take a lawyer with me?

You have a statutory right to be accompanied by a colleague or trade union representative. You may ask for someone else to attend, such as a relative, friend or legal representative, though your employer can legitimately refuse companions that are not colleagues or trade union representatives. Most employers will refuse to allow legal representation at hearings, though it is allowed in some circumstances.

Can disciplinary, capability and grievance 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.

How do disciplinary procedures work?

The general principle is that allegations of misconduct should be investigated before a disciplinary hearing is conducted. You should be sent details of the allegations and any evidence from the investigation in advance of the disciplinary hearing. You should be given the opportunity to present your case and any evidence at that disciplinary hearing before a decision is made. The person conducting the hearing will then need to decide whether you have 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.

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 you to return to work once the disciplinary procedure has concluded.

When can a disciplinary hearing be postponed?

A first request to postpone a disciplinary hearing should usually be granted. You have a statutory right to a postponement if your companion is not available. Requests for other reasons can be refused, particularly if there is no prospect of you being available to attend in the foreseeable future.

Can a disciplinary hearing be held in the employee’s absence?

It can be possible to hold a disciplinary hearing in your absence if your request to postpone was reasonably refused or you simply fail to turn up to a hearing.

Can a disciplinary hearing be held when the employee is off sick?

If you 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. You might be asked to provide a note from your doctor specifically to confirm that you are unable to attend the disciplinary hearing. If there is no prospect of you being well enough in the foreseeable future, it may be reasonable to hold the hearing anyway.

Can a disciplinary hearing be held when the employee is pregnant?

There is nothing to prevent a disciplinary procedure involving a pregnant employee. However it is unlawful to treat you unfavourably because of pregnancy, pregnancy related illness or because you will be taking maternity leave.

When does a disciplinary warning expire?

Any disciplinary warning should state a length of time for which it will remain “live”. It is common for first warnings to last 6 months and final warnings to last 12 months. 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.

What are capability procedures?

Capability procedures are 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 a standard the employer expects.

Can a capability procedure be held when an employee has 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. However, an employer may well justify a capability procedure if the disabled employee is unable to return to work or provide effective service in the foreseeable future. The capability procedure should however consider reasonable adjustments.

Can a capability procedure when an employee has depression?

Depression and other similar mental health conditions can amount to a disability under the Equality Act. It is possible to hold a capability procedure for an employee with depression or other mental health condition, though it may be necessary to make reasonable adjustments.

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 may 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.

How a Performance Improvement Plan be conducted?

ACAS recommend that at least two warnings are given before dismissing for poor performance, unless there is gross negligence. 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 may be given. A further timescale might then be set with clear targets to be met if dismissal is to be avoided.

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.

How does a Grievance Procedure work?

The Grievance Procedure should ask that you put your complaint in writing. A manager should then be appointed to investigate the complaint. You should be invited to a meeting to discuss your 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 you should be offered a right of appeal if you are not satisfied.

How should I write my grievance?

Your grievance should set out your complaint succinctly but with enough detail that your employer will understand what is wrong. It should explain what has happened, when and who was there. If there are documents or emails that show what happened, you should refer to them or attach copies.

To whom should I send my Grievance?

Your employer’s Grievance Procedure should set out to whom grievances should be sent. This might be someone in HR or it might be your line manager. If your grievance is about your line manager, you should send it to their manager.

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. No-one named in the Grievance should be appointed to investigate it.

Who should investigate 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.