Employers should ensure that their own dismissal, disciplinary and grievance policies and procedures comply with the Acas Code of practice on disciplinary and grievance procedures.
Employers must follow a fair procedure when dealing with both grievances and disciplinary matters, including conducting an invesitgation, allowing a companion, keeping a written record of what was decided, any actions taken, whether an appeal was lodged, and the outcome of that appeal.
In the event of a dispute, an employment tribunal should be a last resort, when all other options have been exhausted.
During a disciplinary procedure, HR advice should be limited to questions of law, procedure and process. The actual findings on culpability and sanction should be decided by the manager.
The most important provisions governing discipline and grievances at work are found in the Employment Act 2008 and Employment Tribunals (Constitution and Rules of Procedure) (Amendment) Regulations 2008. The Acas Code of practice on disciplinary and grievance procedures is also of significant importance.
Employers and employees should do all they can to resolve disciplinary and grievance issues themselves and if necessary should use a third party (for example, a mediator or an arbitrator) to help resolve the problem. There is a requirement for Acas early conciliation in most cases – the employment tribunal ought to be a last resort.
Key legal principles
The Acas code of practice on disciplinary and grievance procedures and guidelines are intended to simply reflect reasonable behaviour. Employers should, therefore, ensure that their own policies and procedures comply with the Acas code.
Most organisations will have existing policies which do comply with the Acas code. However, employers should check they do not contradict its provisions.
All the following elements should be considered for inclusion in the policy:
Provision for dealing with minor matters informally.
Encouraging the use of mediation to resolve disputes where appropriate.
The need for the prompt handling of issues.
The need for clarity and unambiguousness.
Clarification of who is covered, for example, employees, agency workers, temps etc.
Confirmation of action that can be taken and by whom.
Dismissal should be by senior management only.
Clear identification of matters that amount to gross misconduct.
Ensuring there is no dismissal for first breach of discipline, unless for a matter of gross misconduct.
Confirming the decision, reasoning and right of appeal in writing.
Policies and procedures must be distributed to all employees and any changes must be communicated effectively.
The Acas code will be used as a benchmark by employment tribunals when considering the fairness or otherwise of an employer's procedure and actions.
The employer should follow its own comprehensive disciplinary and grievance procedures which must, at the very least, comply with the Acas code of practice on disciplinary and grievance procedures. Employment tribunals can adjust awards up or down by up to 25% to take into account non-compliance by either party (see Tribunal claims, settlement and compromise Q&As).
Acas has also published detailed non-statutory guidance on handling workplace disciplinary and grievance issues which emphasises the importance of written notification of disciplinary matters and grievances, meetings and appeals.
The Code does not apply to:
dismissals because of redundancy (see Redundancy Q&As)
the non-renewal of fixed-term contracts on their expiry.
Employers should carry out an investigation before deciding whether to conduct a disciplinary procedure.
During an investigation an employer must:
Establish the facts of each case.
Investigate potential disciplinary matters promptly.
Make clear that a meeting that is merely investigatory may lead to disciplinary charges.
Allow employees to be accompanied in certain cases (and inform employees of the separate statutory right to be accompanied in appropriate cases).
Keep any period of suspension (which must be with pay) very brief.
Inform the employee of the problem.
If it is decided that there is a disciplinary case to answer, the employee should be notified in writing.
If there is a case to answer, the employer must hold a meeting with the employee to discuss the problem. The employer should:
Ensure the notification (including copies of witness statements) contains sufficient information to let the employee know what the alleged problem is and its possible consequences.
Hold the meeting promptly while allowing the employee reasonable time to prepare their case.
Allow the employee to set out their case, call any witnesses and answer any allegations.
Ensure that where possible a different manager conducts the meeting to the person conducting the investigation.
Allow the employee to be accompanied at the meeting by a trade union official or colleague when requested (this is a statutory right where the disciplinary meeting could result in a formal warning being issued or disciplinary action being taken).
Consider arranging for someone who is not involved in the facts of the matter to take a note of the meeting and to act as an observer concerning the events of the meeting.
If necessary, arrange for an interpreter to be present.
Keep a careful written record including the nature of the problem, what was decided and actions taken, the reason for the actions, whether an appeal was lodged and any subsequent developments (records are confidential and should be kept in accordance with the Data Protection Act 2018 and the GDPR – see our Data protection, surveillance and privacy at work Q&As).
Give copies of meeting records to the employee, including copies of any formal minutes.
Consider whether any reasonable adjustments are necessary to accommodate employees, witnesses, companions etc.
It is also sensible to provide for what will happen in the event of failure to attend meetings.
After the meeting
The employer should decide on appropriate action and inform the employee. The Acas code emphasises that:
If the employee is found guilty of misconduct or poor performance, they should be given a written warning.
A further act of misconduct or failure to improve within a set period would normally result in a final written warning.
If misconduct or performance is sufficiently serious, the employer may move directly to a final written warning.
Any warning should set out the nature of the misconduct or poor performance and the change required (with a timescale).
The employee should be told of a specified period after which the warning will be disregarded and that failure to improve, within the set period following a final warning, may result in dismissal or some other penalty such as demotion.
A fair disciplinary process, including a right of appeal, should always be followed even in cases where gross misconduct has occurred.
Disciplinary rules should give examples of acts which the employer regards as acts of gross misconduct.
- In exceptional cases where the employee has committed gross misconduct or where the employee is already on a final written warning, the outcome may be dismissal.
Employees found to have committed misconduct must be given the chance to appeal.
Appeals should be heard promptly and be dealt with by a senior manager. Employees have a statutory right to be accompanied at appeal hearings, and employees should be informed in writing of the results of the appeal hearing as soon as possible and a written record should be kept.
Large organisations may wish to allow a further appeal to a higher level of management.
Issues that may cause grievances include problems concerning terms and conditions of employment or working practices, health and safety, work relations, bullying and harassment, or discrimination.
Before dealing with a formal grievance:
Management should be trained in handling grievances and be familiar with the provisions of the grievance procedure.
The employee should let the employer know the nature of their grievance in writing.
Employers should carry out promptly any necessary investigations to establish the facts behind the grievance.
In minor cases employers should offer to deal with matters informally if this is acceptable to the employee.
Consider use of external mediators to help resolve grievances.
If a formal meeting is to take place, employers should allow employees to be accompanied (and inform employees of this, as it is separate statutory right).
Where the grievance is against an employee’s line manager, the employee should be able to approach another manager or the HR department.
Employers should consider arranging for someone who is not involved to take a note of the meeting and to act as an observer.
Organisations should arrange for an interpreter if need be.
Meeting organisers should consider whether any reasonable adjustments are necessary to accommodate employees, witnesses, companions etc.
The employer should hold a meeting with the employee to discuss the grievance, ideally within five working days. As it is the employee who has raised the complaint, the meeting will not be exactly the same as a disciplinary hearing.
The employee has a right to be accompanied at the meeting. Employees should have the opportunity to put forward how they feel their grievances should be resolved. It is likely that emotions will be running high, so employers should make allowances for that and bear in mind that a willingness to listen may lead to an amicable solution.
It is possible that the grievance may be resolved during the course of the meeting but, if not, the employer should tell the employee when they might reasonably expect a response and confirm the outcome of the meeting in writing.
If the employee’s grievance is not upheld, the reasons for that should be carefully explained, as should the employee’s right to appeal.
The employer should keep a careful written record including the nature of the grievance, what was decided and actions taken, the reason for the actions, whether an appeal was lodged, and any subsequent developments. (Records are confidential and should be kept in accordance with data protection legislation - see our Data protection, surveillance and privacy at work Q&As).
A right of appeal should be offered and allowed in the same way as with a disciplinary appeal.
Copies of meeting records should be given to the employee, including copies of any formal minutes taken.
Employers should always consider how similar disciplinary and grievance situations have been dealt with previously.
Consistency is very important but just because an employer treats employees slightly differently, this will not automatically mean any subsequent dismissal is unfair. The allegedly similar situations must be truly similar for inconsistent treatment alone to make a dismissal unfair.
The following points are helpful:
Employers must not indulge in favouritism or partiality when disciplining employees or addressing employees’ grievances.
A disparity of treatment will be relevant if one employee has been led by an employer to believe that certain categories of conduct will not lead to dismissal because another employee has not been disciplined for their wrongdoing.
Exactly parallel circumstances, where one employee has been dismissed and another has not, may mean the dismissed employee can challenge the reasonableness of the dismissal.
An employer could be acting reasonably by treating Employee A and Employee B differently if there are mitigating circumstances, or if one employee has been more apologetic and convincing that the behaviour will not be repeated.
If the employer has been accepted particular behaviour in the past, but has made it clear that the behaviour will be unacceptable in the future, then a dismissal may still be fair even if there is apparent inconsistency.
As always, the fairness of a dismissal depends upon whether the employer has acted within the range of reasonable responses. Any perceived or actual inconsistency is just one factor in assessment of the employer’s behaviour.
Employers should always include a detailed and accurate description of the allegations in the letter inviting the employee to a disciplinary meeting (or in grievance cases, details of their response to the employee).
Employers should enclose with that letter as much supporting detail as possible, for example statements of any witnesses (which may be dealt with anonymously).
Other information which the employer should consider disclosing to the employee may include emails and letters. The evidence an employer will often ultimately rely upon is the verbal account given by other employees, summarised in the form of a witness statement. The law relating to 'evidence' is complex.
Evidence can include:
evidence in documentary form
verbal explanations given by witnesses in a tribunal or court
other evidence such as information on the hard drive of a computer, photographs, CCTV footage or a sound recording.
It is crucial to disclose to the employee as much material as possible in advance of the hearing. This should include copies of any documents, witness statements or other evidence the employer intends to rely on.
The Acas code on disciplinary and grievance procedures confirms that the notification to the employee before any meeting should contain sufficient information about the alleged misconduct or poor performance and the consequences to enable the employee to prepare to answer the case at a disciplinary meeting. It would normally be appropriate to provide copies of any written evidence, which may include any witness statements, with the notification. The notification should also give details of the time and venue for the disciplinary meeting and advise the employee of their right to be accompanied at the meeting.
Supply of information
Information supplied to the employee prior to a disciplinary meeting should be as accurate and honest as possible.
The employer should supply enough information so that the employee knows what the allegations against them are.
There are three distinct categories of persons who may be present at the disciplinary or grievance meeting:
There will often be a witness. The witnesses may have information which supports the employer’s version of events or the employee’s version.
There may be a minute taker (usually from the HR department), invited by the employer to take a careful note of the matters discussed. This person should not be a witness to any of the events giving rise to the hearing.
There may also be a companion invited by the employee.
The role of witnesses should not be confused with that of the companion or the impartial note taker. The companion is there to support the employee, whereas witnesses have seen or heard something relevant to the dispute.
As well as giving the employee copies of witness statements before the meeting, there should be an opportunity for both parties to call witnesses in person. The Acas code encourages this.
In practice, many meetings will proceed without witnesses, either because it is not necessary or appropriate, or because witnesses will be reluctant to get involved. Witnesses should not be pressured or intimidated in any way.
If witnesses do attend, the employer and employee must be allowed to question them about the information they have provided. Different witnesses may have different versions of what happened and the employer must decide which witness is to be believed. (Otherwise, there is a risk that the meeting starts to seem more like a tribunal hearing, which will increase the length and acrimonious nature of the dispute.)
In some cases, witness evidence may be considered anonymously.
During the meeting stages of the disciplinary grievance and dismissal procedures, all employees and workers have a right to be accompanied by a trade union representative or a colleague of their choice.
The right to be accompanied applies to meetings where a formal warning may be issued, or some other disciplinary action taken.
The right to be accompanied does not apply to informal discussions or investigatory meetings, although an employer may choose to grant an employee's request to be accompanied at any meeting.
If the companion is a colleague, the employer must give that person time off work to attend the hearing.
Role of a companion
Acas reinforces the fact that the employer must mention the right to be accompanied in the written communication prior to the meeting being held and a good practice approach would allow the companion to participate as fully as possible in the hearing, including asking witnesses questions. However, the law states that the employer must permit the companion to do any or all of the following:
address the hearing
put or sum up the employee's case
respond on the employee's behalf to any view expressed at the hearing
confer with the employee during the hearing.
The employer does not have to allow the companion to answer questions on behalf of the employee.
If it is not reasonably practicable for the companion to attend a meeting, then the employer should re-schedule it. The employee must propose an alternative date within five days and, if acceptable, the employer must then invite all parties to attend at this new time.
Failure to allow a companion
The right to be accompanied arises under the Employment Rights Act 1999 and therefore is a separate statutory right. Where an employer fails to comply with this right, the worker can bring a claim seeking compensation of up to two weeks’ pay.
Despite the revision to the Acas code making it clear that employers must allow a free choice of companion, some employers may still decide to refuse to allow a companion who is an employee who has caused problems for them in the past if there is strong evidence and good reason.
The guidance accompanying the Acas code recognises that there may be occasions when an employee is unable or unwilling to attend a disciplinary or grievance meeting. This may be for genuine illness or because the employee wishes to avoid the meeting due to anxiety concerning the issues to be discussed. Employers should obviously make at least one or two attempts to reschedule meetings.
Where there has been a failure to attend a meeting, Acas recommends taking into account:
The seriousness of the disciplinary issue under consideration.
The employee’s disciplinary record (including current warnings).
The employee’s general work record.
Position and length of service (although sensible employers will not treat employees differently on grounds of length of service to avoid age discrimination claims).
Medical opinion on fitness to attend the meeting.
Treatment of similar cases in the past.
After repeated failures to attend meetings, employers should inform the employee that there is no alternative but to make a decision on the evidence available in their absence. Employers should keep a careful record of the employee’s failure to attend the meetings and the attempts to reconvene them.
Employees who do not follow the code may see their compensation awarded by a tribunal reduced by up to 25%.
Where an employee raises a grievance during disciplinary proceedings, the procedure may be temporarily suspended in order to deal with the grievance.
There are three main potential scenarios:
The grievance relates to the subject matter of the ongoing disciplinary proceedings: In this situation the grievance and disciplinary issues are related. It may therefore be appropriate to deal with both matters together. Subject to the employee’s views, the matter could be raised within the framework of the disciplinary investigation. If so, there should be separate findings on both the grievance and the disciplinary matters.
The grievance relates to a perceived bias held by the manager conducting the disciplinary meeting or to the procedure used during the disciplinary process: if so, the employer should consider whether it is safer to suspend the disciplinary procedure for a short period to deal with the grievance separately. This will minimise allegations that the process was unfair.
The grievance does not relate to the investigation or disciplinary process: In this situation it may be easier for the grievance process to run in parallel to the disciplinary process. The grievance procedure should be followed and dealt with by a manager who is not involved with the disciplinary procedures.
Employers should always check whether their own grievance and disciplinary procedures cover this issue as many policies and procedures do.
While it is often a good idea to put a disciplinary process on hold while the employee's grievance is dealt with, this is not compulsory.
Deciding who should make a disciplinary decision on behalf of the employer can sometimes be a difficult issue. Disciplinary decisions should be made by the person whom the employer has held to be responsible for making decisions in the context in which the disciplinary issue arose.
Usually there will be a disciplinary, grievance or dismissal policy which specifies the manager with authority to hear the case. Any decisions to suspend or dismiss must be taken by that specified manager. The Acas code of practice on disciplinary and grievance procedures should also be followed.
If the manager specified is involved in the issue which caused the problem, another more senior manager may be chosen by the employer.
In order to implement a fair dismissal for misconduct, the employer must:
have a genuine belief based on reasonable grounds that the employee committed the misconduct
carry out as much investigation as was reasonable in the circumstances.
Managers carrying out a disciplinary investigation will often ask for help from HR. However, the HR team’s role is to be consulted and to advise on any suspensions, investigations and the formal procedure. HR should not influence the final decision. An employee has the right to put their case to the manager making the disciplinary decision without the negative influence of others.
Ideally HR advice should be limited to questions of law, procedure and process. The actual findings on culpability and, importantly, the sanction should be decided by the manager with authority to hear the case.
Emails and other documents which might suggest improper influence will be disclosable if there is a tribunal claim (or a data subject access request) by the employee. By contrast, if legal advisers assist the manager with the disciplinary matter, then those communications are likely to attract professional or litigation privilege and the employer will not have to disclose those to the employee in the same way that HR communications may have to be revealed.
HR should be clear in emails and meetings that they will give advice on procedure and not their opinion on whether an employee is guilty. If HR give limited advice on the appropriate sanction, this should be to ensure consistency with how other employees have been treated for similar offences.
Any appeal should be conducted by a different manager who is senior to the manager who conducted the first disciplinary hearing (for example, a director or group manager). This may not be possible in smaller workplaces. Whoever hears the appeal should consider it as impartially as possible.
It is a common misconception that an employer can simply dismiss an employee for gross misconduct. In fact, it is almost always unfair to dismiss an employee instantly without first going through some form of procedure – whatever the circumstances.
This is conduct so serious it breaks the contract between employer and employee, so justifying summary dismissal. Summary dismissal means dismissing the employee without notice or a payment in lieu.
What an organisation sees as gross misconduct should be clear from its disciplinary procedures, handbook and written contracts. Typical examples include such things as theft or fraud, physical violence, gross negligence, incapacity due to alcohol or illegal drugs, and serious disobedience.
An employer must still follow a fair procedure as for any disciplinary matter. Failing to do so is highly likely to be considered unfair at an employment tribunal.
In cases of very serious misconduct, a short period of suspension on full pay may be appropriate while the investigation takes place.
The Acas code provides guidance for cases of gross misconduct.
After the disciplinary process has been completed, but before deciding to dismiss the employee, employers should consider:
Was this a first offence?
How significant is the rule that has been breached, and how was it communicated to employees?
Has there been a reasonable investigation?
Did the company follow a fair procedure?
Was the employee given sufficient details of the allegations against them?
Was the employee given adequate opportunity to respond to allegations?
Were there any mitigating circumstances such as provocation or length of service?
Have employees been treated consistently?
The first step in dealing with bullying or harassment in the workplace is to follow the organisation’s grievance procedure with respect to the bullying and the organisation’s disciplinary process with respect to the alleged perpetrator. A well-drafted policy will always include informal stages which should be followed in appropriate cases. Some organisations have an express policy dealing with bullying which should correspond with the stages in the disciplinary and grievance process. The following additional points should be emphasised:
All employees and managers should be fully aware of the provisions of the policy and trained in its implementation.
The procedures should be followed consistently for all such allegations.
The policy should also incorporate procedures which correspond with the equal opportunities policy so that racial, sexual harassment etc can be identified and dealt with in a sensitive way.
The policy should state that harassment and bullying is not, and will not, be tolerated within the organisation and define what constitutes bullying and harassment.
The organisation’s grievance procedure should be followed, and all such procedures should provide for the possibility that a line manager may be the source of the grievance and therefore nominate an alternative senior member of management to hear the grievance.
There should be a thorough and impartial Investigation into any allegation of bullying, which should be carried out with care and sensitivity.
The employer must protect the rights of both the alleged harasser and the person making the complaint and, therefore, confidentiality is crucial.
Referring the alleged victim to a confidential counselling service, as well as dealing with the grievance, will help the employer’s position. The counsellor should have no direct role in the grievance procedure.
The investigation may begin with a thorough confidential interview with the complainant to ascertain:
Who was involved?
Were there witnesses?
When and where did the incident occur?
An indication of what the employee wishes the outcome to be, for example, disciplining the person concerned, reallocation of duties, reorganisation of team members, relocation etc.
The employer will also need to:
Explain the procedure in full to the complainant and follow that procedure to the letter.
Prepare written statements from all witnesses in the investigation.
Interview the alleged harasser confidentially and keep a record of that.
Advise the alleged harasser of the allegations against them and the disciplinary procedure, if necessary, listening to their version of events, and allowing them to be accompanied, if required.
A copy of the complainant's written statement may be given to the alleged harasser who should be afforded an opportunity to reply to the allegations.
Following the initial interviews, if the complaint is valid the employer should take prompt action to stop the bullying.
Action taken by the employer may include:
Suspension on full pay and/or invoking the full disciplinary procedure which may lead to dismissal in serious cases.
A verbal or written warning.
Monitoring the on-going relationship between both employees after the incident.
If the employer does not know who to believe and there is a total conflict of evidence, a very detailed investigation should be undertaken. The senior manager handling the grievance should talk to all witnesses to ascertain whether the alleged incident occurred. The employer only needs a reasonable belief based on a thorough investigation to validate its subsequent actions. Importantly, it does not matter if the employer is subsequently proved to be wrong provided it had a genuine belief that the incidents occurred at the time it takes appropriate action.
Employees must be treated fairly throughout any appeal process, which must follow both any internal disciplinary policy and the Acas code of practice on disciplinary and grievance procedures.
Organisations should not rely on an appeal to correct earlier failings in the disciplinary process, although a fair appeal may help employers avoid findings of unfair dismissal.
Every point of appeal must be addressed and comprehensively responded to in the appeal and in the appeal outcome letter.
A successful appeal automatically revives employment and employers should not communicate an employee’s departure too early in case the decision to dismiss is overturned on appeal. If an employer fails to comprehensively deal with some of the allegations in disciplinary proceedings, this failure may be a breach of contract (see Patel v Folkestone Nursing Home Ltd, 2018).
Generally, the employer should not increase the sanction from the previous hearing unless this is expressly provided for in the discipline and grievance policy. An example would be increasing the sanction from a warning to a dismissal (see McMillan v Airedale NHS Foundation Trust, 2014).
The Acas code on disciplinary and grievance procedures does not usually apply to ill health dismissals, but only to situations where an employee’s alleged act or omissions involves misconduct or poor performance requiring correction or punishment (see Holmes v Qinetiq Ltd, 2016).
An employer should have alternative procedures for dealing with ill health, unless the ill health leads to a failure to comply with a sickness absence procedure, in which case disciplinary procedures may be necessary (see Absence procedures Q&As).
The Acas code also does not apply to redundancy dismissals or the non-renewal of fixed term contracts on their expiry.
If employers are in doubt whether the Acas code applies, then it is probably safer and good practice to follow it anyway, because employment tribunals can adjust any award made by up to 25% if there has been a failure to comply with the code when it is applicable.
Whether a disciplinary procedure has to be followed in full before issuing warnings to an employee or suspending them on full pay will depend upon what the employer has included in its policy.
Most disciplinary procedures will allow an employer to give verbal, written and final written warnings, which will have a defined lifespan.
Before issuing oral or written warnings or suspending an employee on full pay, employers must comply with both the organisation’s own procedure and the Acas code of practice.
Employees and workers have a statutory right to be accompanied where a disciplinary meeting could result in a formal warning or some other disciplinary action.
Depending on the outcome of the disciplinary proceedings, an employee may be given a written warning or performance note. These will usually be disregarded after a specified number of months of satisfactory service.
If a disciplinary policy has set time periods after which warnings will expire, these should normally be complied with. Employers must not use expired warnings to dismiss employees for something which on its own would not justify dismissal.
The Acas code of practice on disciplinary and grievance procedures states warnings should be disregarded for disciplinary purposes after a specified period. It suggests 12 months for a final written warning and six months for other warnings.
Acas guidance says prior disciplinary records can influence how long a warning should last and, in exceptional circumstances, misconduct may be so serious that it cannot be ignored for future disciplinary purposes.
Employers do not have to remove expired warnings from an employee’s file, unless their disciplinary policy requires this. In exceptional circumstances, a dismissal which takes into account expired warnings may be fair.
Usually it will be unfair for an employer to have regard to an expired warning when deciding whether to dismiss. In rare cases, relying on an expired warning may be fair; it remains good practice to make sure a dismissal can be justified without the need to refer to an expired warning.
The Information Commissioner recommends employers have clear procedures on handling expired warnings and how long they are retained (see our Factsheet on Data protection and GDPR in the workplace). Disciplinary policies should, therefore, specify if an expired warning may be relied on, and how long warnings will be retained (often 6 or 12 months). Some disciplinary policies may allow for longer set periods for misconduct verging on gross misconduct, or where there has been a history of warnings.
Any communication from an employee to their employer which contains a problem or complaint should potentially be treated as a grievance. If an employer is in doubt about whether the employee is raising a formal grievance, the employer could always ask them directly.
The key points which employers should note concerning grievances are:
Grievances can be contained in a wide variety of written communications, for example, a letter making a general moan or grumble, emails, resignation letters, in a letter from the employee’s solicitor (even a letter threatening proceedings) or a flexible working request.
If a grievance does not mention its legal basis, the employer may be able to defend a subsequent allegation by the employee that the grievance was not properly dealt with.
Employees do not need to set out a detailed grievance statement but there must be sufficient information for the employer to appreciate that a grievance has been raised.
Employers should scrutinise an employee’s ET1 tribunal claim form to determine the nature of the complaint and compare it to the grievance.
Case law has established that a written request for flexible working under the Employment Rights Act 1996 can count as a grievance letter, even if there is no specific reference to a grievance as such.
Other cases have decided that a resignation letter and a solicitor’s letter were both sufficient to constitute a grievance letter, even though the solicitor’s letter implied that a grievance would follow in due course.
An employer should deal with a bullying complaint by following the organisation’s grievance process with respect to the bullying and the disciplinary and dismissal process with respect to the employee who is alleged to be the perpetrator.
Evidence in relation to the disciplinary process is always important. In considering whether witness statements should be anonymous, consideration needs to be given to balancing the interests of the parties, the need to protect informants and the right of the employee to a fair hearing.
The following points can be used as guidance:
Statements should be in writing (with names removed to preserve anonymity) and made available to the employee or their representative.
Statements need to be accurate with regard to date, time and place of each incident, the employee’s observations and any other relevant details.
Is there any corroborative evidence?
Has the informant any reason to fabricate evidence, for example, because they were in a previous relationship with either the alleged harasser or the harassed?
Is the informant's fear genuine and sufficient for the employer not to require their further involvement in the disciplinary process?
If at any stage in the disciplinary process the employee raises issues to be put to the informant, the employer should consider an adjournment so the relevant question can be put.
In cases involving informants, careful notes must be taken of the disciplinary hearing.
Where two or more employees are suspected of misconduct and the employer, despite investigation, cannot discover who is to blame, it may be fair to dismiss several employees in relation to the same incident on the grounds of a reasonable suspicion (Monie v Coral Racing Ltd, 1981).
The EAT has set out five principles for employers faced with the prospect of multiple dismissals (Parr v Whitbread plc t/a Threshers Wine Merchants, 1990):
Would the conduct justify dismissal if it was committed by an individual?
Has the employer conducted a thorough investigation which indicates that more than one person could be responsible?
Was it reasonable to identify this group of employees as capable of committing the conduct complained of?
Could each employee in isolation have committed the act?
Given the evidence, can the employer identify the culprit?
Conduct that occurs outside of the workplace can justify a dismissal. However, the conduct must be of relevant to the job in question.
Issues employers need to consider when contemplating dismissal in such circumstances are:
Is there an express term in the contract or the disciplinary policy governing misconduct outside the workplace?
What is the previous disciplinary record and length of service of the employee?
Does the nature of the misconduct have a bearing on the role performed by the employee (for example, a care assistant in a residential home facing prosecution for assault)?
Will there be an effect on the reputation of the company given the nature of the business (press coverage may be relevant)?
Does the incident involve or affect other employees?
Employees can be disciplined and dismissed for misconduct outside the workplace, provided that the incident is sufficiently closely connected to work to have had an impact on the work environment.
An employer must conduct its own full and thorough investigation, which may include suspension, in relation to an employee facing criminal charges. It is not necessary to wait until the outcome of the criminal proceedings is known before taking action. It is extremely important that an employer carries out its own investigation. Before dismissing, employers should consider the factors listed above. Other relevant issues will include the seniority of the employee, any effect the conviction has on their ability to do their job and the nature of the employer’s business.
All workers can choose a trade union representative or a colleague of their choice at disciplinary, grievance or dismissal hearing, but this does not extend to family members or legal representation. A significant number of claimants (relying either on human rights or contractual terms) have tried to assert a right to legal representation at disciplinary hearings, especially where the worker’s ability to practise their chosen profession is at stake.
An employer may voluntarily allow the employee to choose a family member as a companion, although it doesn’t have to agree to this. There is no statutory right to insist on family members being present if the employer does not agree.
Unless the employer agrees, an employee is not usually permitted to take a solicitor or other legal representative along to such meetings. An employer can therefore insist upon the basic legal position and say only a trade union representative or a colleague is permitted. However, the employer may voluntarily allow the employee to be accompanied by a lawyer if the employee wishes to instruct one.
Some employees who have been refused their request to have a lawyer present have alleged that this is a breach of Article 6 of the European Convention on Human Rights (right to fair trial). Case law has confirmed that while this is generally not a breach of Article 6, in certain limited cases the employee may be entitled to legal representation: for example, where the disciplinary meeting could lead to serious consequences, such as the employee no longer being able to work in their chosen profession (R (on the application of Puri) v Bradford Teaching Hospitals NHS Foundation Trust, 2011).
Examples of cases concerning requests to be accompanied by a lawyer at a disciplinary hearing include a teaching assistant at risk of being added to a register of those unsuitable to work with children. The Supreme Court found he was not entitled to legal representation at a disciplinary hearing leading to dismissal, and his human rights were not breached, because the decision to ban him from working with children was taken by another authority and was separate from the decision to dismiss him (Governors of X School v R on the application of G, 2011).
Allowing an employee to be accompanied by a lawyer is complex and will depend on each individual set of facts. In making their decision, employers should consider the seriousness of the allegations and the consequences for the employee and should also take into account any express contractual entitlement to legal representation at disciplinary hearings. There is also the possibility of a breach of the implied term of trust and confidence between employer and employee.
‘Reasonable’ choice of companion
Workers have an absolute right to choose their own companion provided they fall into one of the permitted categories (trade union official, certified trade union representative or a fellow worker). The employer cannot insist on a work colleague it prefers (see Toal v GB Oils Ltd, 2013).
Acas states that employers “must agree to a worker's request to be accompanied by any companion from one of these categories. Workers may also alter their choice of companion if they wish. As a matter of good practice, in making their choice workers should bear in mind the practicalities of the arrangements. For instance, a worker may choose to be accompanied by a companion who is suitable, willing and available on site rather than someone from a geographically remote location.”
Implied term of trust and confidence
Case law confirms that refusing a choice of a companion for a disciplinary investigation can be a breach of the implied term of trust and confidence.
With advances in technology, including smartphones, recording disciplinary and grievance meetings happens more frequently. The legal position varies depending upon whether the recording is open or secret.
An employer and employee may agree that a sound recording is to take place, or the employer’s own disciplinary and grievance procedure may contain the right to record hearings.
If employers decide to record the proceedings (with the employee’s consent) then typed transcripts are often provided to all parties. The Acas guide on discipline and grievance confirms that copies of meeting records should be given to the employee,.
Alternatively, an impartial employee may attend and take notes on a confidential basis. A full copy of those notes should then be provided to the employee after the hearing and an agreed record produced and signed by both parties. The employee and their companion are also free to take notes during the hearing.
If the employer does not want recordings of meetings, this should be made clear in the disciplinary and grievance procedures. At the start of meetings, it is common to request that mobile phones, or any other portable devices, are switched off and that employees should remove all their belongings from the hearing room during an adjournment.
Covert recordings of meetings with an employer used to be inadmissible as evidence in any later tribunal proceedings. If an employer covertly records a meeting with an employee, the evidence gathered in this way is still unlikely to be permitted.
If the employee makes a recording the general rule established by case law now is that:
the recording of a meeting where the employee was present may be admissible at a tribunal if the tribunal believes it is relevant
any secret recording of private discussions of an employer’s disciplinary panel when the employee is no longer in the room will not be admissible.
If an employer dismisses an employee for an act of gross misconduct and the employee subsequently proves their innocence, the employee will not automatically succeed in an unfair dismissal claim. This is because an organisation only needs reasonable grounds for its belief that there was gross misconduct, based upon a reasonable investigation. If the employer reasonably believed the conduct occurred and followed the Acas code of practice on disciplinary and grievance procedures then the dismissal will be fair, even if the employee subsequently proves they did not do whatever the employer thought they did.
An employer will be able to defend a non-automatic unfair dismissal claim (see our Unfair dismissal Q&As) if it can show it genuinely believed that the employee was guilty of misconduct. The employer should have reasonable grounds for its belief based on a reasonable investigation.
Whether a dismissal is fair or unfair depends on the facts as they are known to the person making the dismissal decision. Even if other employees and the employee’s line manager know some key facts about which the decision maker is genuinely ignorant, the dismissal may still be fair (Orr v Milton Keynes Council, 2011). The fairness of a dismissal depends on whether it was reasonable based on the facts known to the decision maker and not the information known to others in the organisation. Obviously, if there was an error in the disciplinary procedure which meant these facts did not come to light, then the dismissal may still be unfair.
In a case of suspected misconduct, an employer does not have to investigate every line of defence put forward by an employee. An investigation should be looked at in its entirety when assessing the question of reasonableness.
Social media or internet misuse in breach of an organisation’s policy will be misconduct in many cases, amounting to a potentially fair reason to dismiss. Whether dismissal can take place for a first offence depends upon the seriousness of the offence, and the wording of the disciplinary and social media policies. In some cases, a serious first offence such as viewing pornography at work may be gross misconduct leading to grounds for summary dismissal (without notice). Even in such cases It is essential that all correct procedures are followed.
The following help to prevent workplace internet abuse:
- Monitor and restrict employee internet activity. There are many software solutions available to help manage employee internet use.
- Communicate a robust IT and social media policy to employees. Policies should be comprehensive and up to date setting out what is, and is not, acceptable use of social media including the internet, networking apps and emails etc. The policy should also give clear guidelines on appropriate business and private use of social media and what comments, if any, can be made about the organisation.
- Policies should be enforced consistently, and line managers trained on social media issues and disciplinary processes.
- Managers should lead by example, modelling the desired behaviour and constraining their use of social media at work.
Time wasting: If personal internet use is permitted at work, the employer’s policies should indicate for how much use is permitted and at what times. Employees should be treated consistently.
Pornography: Policies should explicitly state that the watching or downloading of pornographic material at work is an act of gross misconduct whether on workplace or personal devices. Employers must follow the disciplinary and dismissal processes in full before deciding to dismiss because failure to do this could lead to an unfair dismissal claim, even if the behaviour was gross misconduct. Relevant steps may include holding investigatory meetings with the employee and any relevant witnesses prior to the disciplinary meeting.
Employers can be held vicariously liable for discrimination claims if an employee sees a colleague using porn as well as gross misconduct it is unwanted conduct of a sexual nature. ACAS guidance states displaying or sharing pornographic material in the workplace is a clear example of sexual harassment. To try and defend themselves employers would have to show that they took all reasonable steps to prevent the incident from occurring which includes having current, clear and well-publicised policies.
Jokes, emails and social media posts: Policies should state that offensive jokes and images should not be circulated in the workplace. Mentioning the employer negatively should also be addressed in the policies and staff should be treated consistently and incidents followed up promptly.
Other issues include downloading unauthorised software and playing computer games at work. Dismissal for this may be within the band of reasonable responses provided that the relevant policies state it is gross misconduct to download unapproved software given the risk the potentially of viruses getting into employers’ computer systems.
Employers need to consider whether the comments or internet abuse affect the employment relationship, the employer’s reputation or the employee’s performance. Negative social media conduct may damage the employer’s reputation, even if it happens outside of work. Reputational damage may also lead to defamation claims.
Here we list a selection of key cases on discipline and grievance issues, providing a summary of the decision and implications for employers.
A relationship manager in the private banking department of the Bank of Greece in London was dismissed for gross misconduct because of a data breach. The dismissing manager was involved in the initial investigation, then handed the investigation over to another manager. After a paper consideration of the investigation reports, the dismissing manager made the decision to dismiss without meeting the Claimant to discuss her case, she appealed and a meeting did take place during the appeal. The tribunal found that overall, the procedure was within the range of reasonable responses and the dismissal was fair.
The EAT rejected the appeal and held that the appeal process was sufficient to correct any imperfections in the decision to dismiss. The EAT rejected an argument based on previous EAT cases that if the dismissing manager failed to meet the employee prior to the dismissal, it would be unfair. The EAT noted said that a meeting was highly desirable before any decision was taken, and any employee should be allowed to explain their position sufficiently before the decision. Here the process was less than ideal but the appeal involved a meeting which cured the defects in the earlier process.
Implications for employers
Disciplinary meetings should always be held. Different managers should carry out the investigation and the disciplinary hearing.
There may be some very limited cases where, despite the fact that the dismissing manager has dismissed an employee without a meeting, a Tribunal will very exceptionally find the dismissal to be fair. This is especially the case if a later meeting has taken place at the appeal stage. However, employers should avoid relying on this limited possibility and should hold proper discipinary and dismissal meetings in accordance with their own procedures and the Acas code.
Employees should be notified of meetings in writing with sufficient information and evidence to enable them to prepare and be told of the right to be accompanied. Meetings must be held without unreasonable delay but with sufficient time for the employee to prepare.
A security guard was dismissed on the grounds of ill health following a number of lengthy periods of absence. He had pain in his back, legs and hips. The employer conceded that his dismissal was unfair because it had not requested an up-to-date occupational health report after the employee had had an operation which had effectively resolved the previous pain. The guard claimed unfair dismissal and requested that the employment tribunal should apply the permitted percentage uplift in any award as a result of the employer’s failure to follow the Acas Code of Practice on Discipline and Grievance.
The employment tribunal and the EAT said that the Acas Code did not apply to ill health dismissals. The employee was entitled to compensation for unfair dismissal but not to the compensation increase as a result of the employer’s failure to follow the Code.
Implications for employers
Employers should always follow their own fair and reasonable procedure before dismissing an employee on the grounds of ill health. They should also obtain up-to-date medical evidence, otherwise the dismissal may be unfair.
Employers do not need to follow the Acas Code when dealing with ill-health capability as this does not involve matters of misconduct or poor performance. The Code only applies to matters where the employee has been culpable. If the only issue with the employee relates to ill health the Code need not be followed.
A compliance inspector with the Department for Transport claimed excessive transport and subsistence expenses and was investigated by a manager on behalf of the employer. The manager’s report was altered and redrafted in conjunction with HR over a six-month period. The changes entailed:
The manager’s positive comments were replaced with negative ones.
The offence of misconduct identified by the manager was changed to gross misconduct.
The sanction was changed from a final warning to summary dismissal.
The manager in question was inexperienced at conducting disciplinary hearings and it was inferred that HR thought the employee's explanations were not convincing. Following HR’s involvement, the manager’s belief changed from thinking that any excessive expenses claims and credit card misuse were not deliberate and that the employee had given plausible reasons for this (which would have resulted in a final written warning), to a belief that the employee had misused the employer’s credit card, which resulted in his dismissal for gross misconduct.
The employee claimed unfair dismissal. The Employment Appeal Tribunal overturned an employment tribunal’s decision that the dismissal was fair. The investigating manager’s initial recommendations were too heavily influenced by the HR department. The EAT concluded that HR had gone beyond discussing and advising on issues of procedure and law, and the appropriate level of sanctions to achieve consistency, which was the proper extent of HR’s involvement. (The case was then settled before a further appeal to the Court of Appeal).
Implications for employers
Employers should have a disciplinary, grievance or dismissal policy which specifies the manager with the authority to hear the case. Any decisions to suspend or dismiss etc must be taken by that specified manager.
Employers should also follow the Acas Code of practice on disciplinary and grievance procedures.
HR departments should not control managers’ decisions to discipline or dismiss.
HR advice should be limited to process and procedure and on ensuring sanctions are consistent for employees committing similar misconduct.
HR should not decide culpability.
HR can educate managers to reach strong decisions, explaining that they are entitled to take into account common sense as well as ‘hard’ evidence.
HR should be clear in emails and meetings etc that it will give advice on procedure etc and not its opinion on whether an employee is guilty.
If there are likely to be documents (such as the paper trail of amended drafts of the investigation report), it may be better to involve a lawyer to gain the benefit of legal professional or litigation privilege, so that the drafts can’t be disclosed. While it is good to document the steps leading to a decision, a paper trail can be damming evidence if it shows that the disciplining manager has been overly influenced.
An NHS consultant obstetrician and gynaecologist faced disciplinary proceedings following an allegation she had given inconsistent accounts about complications during a caesarean section. The disciplinary panel upheld two complaints of misconduct and she was issued with a final written warning. The consultant appealed against the sanction. The appeal panel again upheld the complaint and was contemplating increasing the disciplinary sanction to dismissal, because it viewed the disciplinary charges so seriously. Before the appeal panel could decide on the sanction, the consultant appeared to withdraw her appeal. She also sought an injunction to prevent the Trust from reconsidering the sanction. She was concerned that the penalty would be increased to dismissal.
The NHS’s view was that the appeal panel could uphold, reverse, reduce or increase the written warning.
The Court of Appeal held that an employer does not have the right to increase a disciplinary sanction on appeal unless it expressly provides for this option in its disciplinary procedure. The NHS Trust could not, therefore, increase the severity of the disciplinary penalty because, under the terms of this disciplinary procedure, there was not a contractual right to increase disciplinary penalties on appeal.
If an appeal is the final right of appeal, as in this case, and the sanction was increased, then the employee would have no appeal against dismissal. This would be unfair and a breach of the Acas Code of Practice on Disciplinary and Grievance Procedures.
Implications for employers
If an employee appeals against a disciplinary decision, the general rules of fairness and natural justice should be applied during the appeal hearing. Workers have the right to be accompanied at a disciplinary appeal hearing by a work colleague or a trade union representative. If the employer does not follow a contractual appeals procedure, it may be in breach of contract.
The right of appeal needs to be applied consistently and should take into account the Acas code. If the employee fails to attend the appeal the employer should investigate the reasons for this and rearrange if appropriate.
Ideally, the person hearing the appeal should be more senior than the person responsible for making the decision to dismiss and, following the appeal meeting, the employer should write to the employee to give them the final decision.
Employers can increase a disciplinary penalty on appeal if such a right is included in the employer’s procedures. If employers have included such a right, it would be advisable to follow the Acas code and include a second right of appeal. This is because a key principle of the fairness of a dismissal is that employers should allow employees to appeal against any formal decision made.
A consultant working for a NHS trust was certified unfit for work. While on full sick pay from the NHS she did private patient work, for which she was disciplined by the Trust.
During the disciplinary hearings she admitted to the allegations. She had been told by the NHS that, while off sick, she should not work in private practice but she had anyway. The disciplinary hearing found that she had committed gross misconduct and she was dismissed. The Trust did not consider alternatives to dismissal because the matter was one of breach of trust.
The Employment Appeal Tribunal held that finding an employee guilty of gross misconduct did not mean that dismissal had to automatically follow. Dismissal will not always be considered to be fair and fall within the band of reasonable responses because there has been gross misconduct. An employer should take into account any mitigating circumstances such as medical condition, intensity of the work undertaken, length of service, previous clean disciplinary record and the implications involved in being dismissed. This case was returned to the employment tribunal for reconsideration.
Implications for employers
It is not always reasonable and fair to dismiss an employee who is found guilty of gross misconduct.
Employers have a range of reasonable responses following gross misconduct which range from an informal warning to summary dismissal.
A tribunal will ask if the employer’s actions fell within a band of reasonable responses open to the employer.
Employers must consider all mitigating factors surrounding each case and carefully consider them before making any decision to dismiss.
Employers should always consider alternative possibilities instead of dismissal and issue warnings where appropriate.
When deciding to dismiss employers should confirm to the employee an explanation of the mitigating factors they have considered and why these were insufficient to avoid the gross misconduct dismissal.
An employer refused a request from two employees to be accompanied by a trade union official at a grievance hearing, but allowed a work colleague and another trade union official to act as companions instead. The employees accepted the other companions, but later claimed that their right to be accompanied had been breached. The employer said that the chosen companion had to be reasonable and that, if there had been any breach, it had been waived by the employees anyway, as they were accompanied to their grievance meetings and appeal hearings. The employees said that only the right to request had to be reasonable, not the person they chose and the employer should not have refused their first choice.
The Employment Appeal Tribunal (EAT) held that the employee’s request to be accompanied by a particular companion does not have to be reasonable. The employer therefore should have agreed to any companion as long as they fell into one of the approved categories within the meaning of section 10(3) of the Employment Relations Act 1999 (which includes trade union officials, certified union representatives or fellow workers). This right had been breached by the employer. Compensation for breach of the right to be accompanied is normally capped at two weeks’ pay. The Employment Appeal Tribunal said that compensation would be nominal as they suffered no loss or detriment as they were accompanied albeit by someone else.
Implications for employers
When an employer invites an employee (or worker) to attend a disciplinary or grievance hearing, employees (and workers) have a right to be accompanied by a trade union representative or a colleague at that meeting.
The right applies to meetings where a formal warning may be issued or some other disciplinary action could take place.
A failure to allow an employee (or worker) to bring a companion will lead to an automatically unfair dismissal claim.
An employee (or worker) has the right to make a reasonable request to be accompanied.
If a request is made, an employer must allow the employee (or worker) to be accompanied.
Employers may be liable for compensation for breach of the right to be accompanied which is capped at two weeks’ pay.
Paragraph 36 of the Acas Code of practice on disciplinary and grievance procedures will be amended' as it says it is not reasonable for workers to insist on being accompanied by a companion whose presence would prejudice the hearing, nor would it be reasonable for a worker to ask to be accompanied by a companion from a remote geographical location if someone suitable and willing was available on site.
In fact an employee (or worker) can choose one of two types of trade union official or a work colleague. The choice is the employee’s alone and does not have to be reasonable.
If a companion cannot attend the hearing must be delayed by up to five days.
There is still a breach of the rules if a companion is refused and the employee is accompanied to meetings and hearings with other companions.
Employers should think carefully about requests to be accompanied and should not interfere with an employee’s choice of companion, unless that companion is not a trade union official or work colleague.
The basic legal position is that employees can only insist on a trade union representative or a colleague. However, many employers voluntarily allow an employee to be accompanied by a lawyer (if the employee asks for this), or choose a family member as a companion instead.
 EWCA Civ 135
A science teacher was alleged to have committed misconduct during a lesson and was suspended. Following an investigation and disciplinary hearing, she received a final written warning which would remain on her record for two years. Within that period, the teacher committed a further alleged act of misconduct and was subject to a further suspension, investigation and disciplinary hearing. As a result of that second hearing the council dismissed her, taking into account the written warning which she had been given previously. She had previously lodged an internal appeal against the issue of the final warning but that hearing had been adjourned for organisational reasons and never rescheduled.
The teacher claimed unfair dismissal in a case which eventually reached the Court of Appeal. One of the main points she argued was that the final written warning should be treated as a nullity because the council had not considered evidence that might have disproved the alleged misconduct. However, the Court of Appeal confirmed that the dismissal was fair; the tribunal was entitled to find that the council was entitled to consider the final written warning when it decided to dismiss. All the tribunal had to do was decide if the final warning was something that a reasonable employer could consider in deciding to dismiss. The tribunal did not have to consider whether the final warning was a nullity, as long as the warning was issued in good faith and it was not manifestly inappropriate to have given the warning at all.
Implications for employers
Employers should follow their disciplinary procedures to the letter.
Disciplinary procedures should always at the very least comply with the Acas Code of practice on disciplinary procedures.
If an employee is guilty of persistent misconduct and the employer follows the proper procedures it should be possible to dismiss.
A current written warning for a previous incident can be taken into account by employers in deciding whether to dismiss.
Before relying on a prior warning, an employer should check that the warning was issued in good faith, that it was not manifestly inappropriate and that there was evidence to substantiate it.
In most cases employers should consider previous warnings and the fact that the employee has appealed but not taken the appeal through to a conclusion.
Please note: While every care has been taken in compiling this content, CIPD cannot be held responsible for any errors or omissions. These notes are not intended to be a substitute for specific legal advice.
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