Your employers should have a disciplinary code which should be applicable to all employees. Within that disciplinary code there should be a Written Statement of Particulars within in which as required under Chapter 18 of the Employments Right Act 1996
1. any disciplinary rules applicable to the employee must be:
- set out in a note within the written statement of particulars or
- alternatively, the written statement may refer the employee to a separate document containing those rules, which must be reasonably accessible
2 any procedures applicable to the taking of disciplinary decisions relating to the employee, or to a decision to dismiss the employee must likewise be:
- set out in the written statement or
- kept in a separate reasonably accessible document to which reference is made in the statement
3. a person must be specified to whom the employee can apply if dissatisfied with a disciplinary decision or a decision to dismiss him (ie internal appeal provisions)
4. a person must be specified to whom the employee can apply concerning any grievance
5. the manner in which appeals and grievance applications should be made must also be specified.
6. Where there are further steps to be taken after lodging the appeal or grievance, those steps must either be:
- explained in the written statement itself or
- kept in a separate reasonably accessible document to which reference is made in the statement
.
Procedures implemented by the employer: requirements
There are Key principles required for disciplinary procedures and these are as follows:-
Ø use of procedures primarily to help and encourage employees to improve rather than as a way of imposing a punishment
Ø use informal action to deal with initial instances of minor misconduct or unsatisfactory performance
Ø inform the employee in writing of the complaint against him and provide him with an opportunity to state his case before any decision is reached
Ø the opportunity to state a case should include the ability to ask questions, present evidence, call witnesses and raise points about the information provided by other witnesses
Ø make sure that the decision is taken as impartially as possible
Ø make sure that disciplinary action is not taken until the facts of the case have been established and that the action is reasonable in the circumstances
Ø never dismiss an employee for a first disciplinary offence, unless it is a case of gross misconduct
Ø give the employee a written explanation for any disciplinary action taken and make sure he or she knows what improvement is expected
Ø give the employee an opportunity to appeal, but set a time limit for bringing the appeal
Ø deal with issues as thoroughly and promptly as possible
Ø keep records
Ø act consistently
Key principles for grievance procedures are:
Ø employees should aim to resolve most grievances informally with their line managers
Ø if the grievance is against the person with whom the grievance would normally be raised, the employee should go to that person's line manager
Ø employees should be allowed to explain their complaint and say how they think it should be settled
Ø the grievance should be dealt with without undue delay
Ø give the employee an opportunity to appeal, but set a time limit for bringing the appeal
Ø deal with issues as thoroughly and promptly as possible
Ø keep records
In the event that your company does not have a disciplinary procedures (which they should) then the Acas Code of Practice on Disciplinary and Grievance Procedures, should be applied
The Acas Code of Practice on Disciplinary and Grievance Procedures provides a framework to be followed by both employers and employees when dealing with disciplinary action and grievances. For these purposes, 'disciplinary' issues include not only matters arising out of misconduct but also those related to poor performance/capability. Grievances, for these purposes, are defined as concerns, problems or complaints employees raise with their employer.
Disciplinary action
Disciplinary action covers anything up to and including dismissal. The code of practice sets out the steps which should lead up to dismissal, as an employee should rarely be dismissed for a first offence, unless it amounts to gross misconduct. The code of practice does not state that verbal warnings (sometimes called oral warnings, ie warnings that are not formally recorded in writing) should be the first stage of a disciplinary process; instead it begins with a written warning as the first action under a formal procedure.
Informal resolution of disciplinary or poor performance issues is not covered by the Code of Practice.
Verbal warnings need not form part of a formal process, but if they are included in the employer's disciplinary procedure, then the procedure leading up to giving a verbal warning would need to comply with the code of practice. Any other action taken for disciplinary purposes, eg suspension without pay or demotion, would be covered by the Code of Practice
The Code of Practice applies to the majority of employment claims.
Whilst a failure to follow the Code of Practice will not, of itself, give rise to liability, a tribunal may take it into account when considering relevant cases. Employers and employees should therefore follow the Code of Practice in all disciplinary or grievance situations, unless it would be reasonable not to do so.
The Code of Practice creates obligations on both employers and employees, and an unreasonable failure to follow the Code of Practice may affect any compensation awarded in a successful claim. Where an employer has unreasonably failed to follow it, it may also result in a dismissal being found to be unfair (such failures do not make a dismissal automatically unfair).
One of the initial requirements of the Code of Practice is that any disciplinary or grievance procedure should be in writing, and developed with the involvement of employees and their representatives (where appropriate). A failure to do so may of itself be a breach of the Code of Practice.
The Code of Practice lays down the minimum standards expected of both employers and employees. Nevertheless, employers may voluntarily include additional requirements into their procedures, provided they do not conflict with the Code of Practice, eg by preventing an employee from accessing a right to which he is entitled under the Code of Practice.
For full details of your rights you will need to go to:-
Right to be accompanied
Any worker who is required or invited by his employer to attend a disciplinary or grievance hearing, and makes a reasonable request to be accompanied, has the right to be accompanied at that hearing.
Who has the right
This right covers anyone, whatever their length of service, who is a 'worker' who has entered into a contract of employment or any other contract (whether express or implied, oral or written) under which the individual agrees personally to undertake work or services for another party who is not a client or customer of that individual's own business, agency workers, home workers or persons in Crown employment (except for the armed forces, the Security Service, the Secret Intelligence Service, or GCHQ) In very limited circumstances, employees may also have a right to legal representation.
The right to be accompanied to disciplinary or grievance hearings is also a requirement included in the Acas Code of Practice on Disciplinary and Grievance Procedures.
The companion's role
At the hearing, the employer must permit the worker's chosen companion to:
- address the hearing to
- put the worker's case
- sum up that case
- respond on the worker's behalf to any view expressed at the hearing
- confer with the worker during the hearing
The employer is not obliged to allow the companion to:
- answer questions on behalf of the worker (although the employer can allow this if he wishes)
- address the hearing, if the worker indicates that he does not wish the companion to do so
- put the worker's case, sum up the case, or respond on the worker's behalf in a way that:
§ prevents the employer from explaining his case or
§ prevents any other person at the hearing from making his contribution to it
Requests to postpone hearings
Once a worker chooses a companion, it may be that the chosen companion is unavailable on the day and time set for the hearing by the employer.
If the worker requests a postponement of the hearing to accommodate his chosen companion, the employer is obliged to agree to that request provided the worker proposes an alternative time and date for the hearing that:
- is reasonable and
- is within the five working days (ie not including weekends, bank holidays, Christmas Day or Good Friday) after the day originally proposed.
Time off for companions
The employer is obliged to permit a companion to take time off during working hours to accompany a worker to a relevant hearing. This obligation applies whenever it is the employer who has control over when the companion may take time off (ie whether the companion is one of the employer's ordinary workers, or is a trade union official who is one of the employer's workers).
· the amount of time off, the purposes for which it is taken, the occasions on which it is taken, and any conditions imposed on taking it, must be reasonable in all the circumstances, having regard to the Acas Code of Practice
·
such a companion is entitled to be paid for the time of that they are permitted. The amount they are paid depends upon their normal method of remuneration and must be calculated in accordance with the provisions of S169 of TULR(C)A 1992
In cases of capability, warnings or improvement notices should be used as the basis for monitoring performance over a specified period.
In cases of misconduct, a warning that has been given should be disregarded for disciplinary purposes after a specified period of time. Once disciplinary action has been taken, it will usually be unfair for an employer to impose a further sanction for the same conduct, although an employer is entitled to take into account past misconduct (unless it is time-expired and to be disregarded) in deciding on disciplinary action for subsequent misconduct.
The appropriate length of time for the warning/improvement notice may depend on the nature of the offence/poor performance, and the employee's previous disciplinary/performance history. It may therefore not be appropriate to stipulate the length of time warnings/improvement notice will last in a disciplinary or performance procedure; any duration specified should at least be made flexible.
THIS ARTICLE IS FOR INFORMATION PURPOSES
THIS ARTICLE IS FOR INFORMATION PURPOSES
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