disciplinary
and grievance procedures
by
Roderick Ramage, solicitor, www.law-office.co.uk
first
published in New Law Journal (newlaw.journal@lexisnexis.co.uk) on 19 November
2004
DISCLAIMER
This article is not advice
to any person and may not be taken as a definitive statement of the law in
general or in any particular case. The author does not accept any
responsibility for anything that any person does or does not do as a result of
reading it.
sequel
This substance of this article is obsolete, but the article remains
currents as an example of stupid but well-intentioned legislation and the
ability of the legislature to correct its mistakes. By the Employment Act 2008, s 1,
the unloved statutory resolution procedure, in the Employment Act 2002 was
revoked with effect from 6 April 2009 and by the Employment Act 2008, s 3, a
new s 207A was introduced into the Trade Union and
Labour Relations (Consolidation) Act 1992, with the effect that from that date,
an award made by an employment tribunal to an employee may be increased by not
more than 25% if the employer had unreasonably failed to comply with a relevant
ACAS code of practice, or reduced by a like amount if the failure was on the
part of the employee. The current ACAS
Code of Practice was brought into effect on 6 April 2009 by SI 2009/771, art 2.
introductory note
On 1 October 2004, more than two years after Royal Assent, the
disciplinary and grievance procedures contained in Schedule 2 of the Employment
Act 2002 were brought into force by the Employment Act 2002 (Dispute
Resolution) Regulations 2004, SI 2004/752.
Section 30(1) of the 2002 Act provides that every employment contract
shall have effect to require the employer and employee to comply with the
disciplinary and grievance procedures, and by sub-section (2) the parties may
not contract out of the statutory procedures, but any other procedures agreed
between the parties will continue to apply in addition to the statutory
procedures and in so far as they are not inconsistent with them.
By s3 of the Employment Rights the employer must either the procedures
or make documents containing them procedures “reasonably accessible” to the
employees and specify the person to whom grievances should be made. It should be assumed in practice that
employers, except those who cannot be bothered or deliberately do the minimum
that the law requires or less, will wish, particularly if so advised by their
solicitors, to include disciplinary and grievance procedures in their
statements of terms of employer.
The following precedent is intended to be sufficient to satisfy the
statutory procedures and could be used as an employer’s entire disciplinary and
grievance procedures. It first appeared
in the 18th Edition of Kelly’s Draftsman, edited by the writer, in
anticipation that the statutory procedures would have been brought into force
much earlier than was the case. In
Kelly, the statutory procedures are shown as additions to the procedures agreed
between the employer and employee. Where
the following precedent is insufficient for a particular employer’s
requirements and more detail is required, possible additional provisions are
available in Kelly.
precedent
disciplinary procedure
preliminary
If any disciplinary action taken by the Employer arises relating to the
employee’s employment, it shall be dealt with in accordance with either of the
following procedures. The first (the standard procedure) is in three stages and
provides for meetings to seek to deal with the matter, whilst the second (the
modified procedure) is in two stages where the matter is to be dealt with
initially in writing but at a meeting on appeal.
first Standard
procedure
Step 1: statement of grounds for action and
invitation to meeting
1.1 The employer must set out in writing the
employee's alleged conduct or characteristics, or other circumstances, which
lead him to contemplate dismissing or taking disciplinary action against the
employee.
1.2 The employer must send the
statement or a copy of it to the employee and invite the employee to attend a
meeting to discuss the matter.
Step 2: meeting
2.1 The meeting must take place
before action is taken except in the case where the disciplinary action
consists of suspension.
2.2 The meeting must not take
place unless –
(a) the
employer has informed the employee what the basis was for including in the
statement under paragraph 20 the ground or grounds given in it, and
(b) the employee has had a
reasonable opportunity to consider his response to that information.
2.3 The employee must take all reasonable steps
to attend the meeting.
2.4 After the meeting the
employer must inform the employee of his decision and notify him of the right
to appeal against the decision if he is not satisfied with it.
Step 3: appeal
3.1 If the employee does wish to
appeal, he must inform the employer.
3.2 If the employee informs the
employer of his wish to appeal, the employer must invite him to attend a
further meeting.
3.3 The employee must take all
reasonable steps to attend the meeting.
3.4 The appeal meeting need not
take place before the dismissal or disciplinary action takes effect.
3.5 After the appeal meeting the
employer must inform the employee of his final decision.
second Modified
procedure
Step 1: statement of grounds for action
1 The employer must:
(a) set
out in writing:
(i) the employee's alleged misconduct which has
led to the dismissal,
(ii) what the basis was for
thinking at the time of the dismissal that the employee was guilty of the
alleged misconduct, and
(iii) the employee's right to
appeal against dismissal, and
(b) send the statement, or a copy
of it, to the employee.
Step 2: appeal
2.1 If the employee does wish to
appeal, he must inform the employer.
2.2 If the employee informs the
employer of his wish to appeal, the employer must invite him to attend a
meeting.
2.3 The employee must take all
reasonable steps to attend the meeting.
2.4 After the appeal meeting, the
employer must inform the employee of his final decision.
1 Each step and action under
the procedure must be taken without unreasonable delay.
2 Timing and location of
meetings must be reasonable.
3 Meetings must be conducted
in a manner that enables both employer and employee to explain their cases.
4 In the case of appeal
meetings which are not the first meeting, the employer should, as far as is
reasonably practicable, be represented by a more senior manager than attended
the first meeting (unless the most senior manager attended that meeting).
5 The employee is entitled to
be accompanied at any meeting by a trade union employee or official or another
of the employer’s workers, who may address the meeting and confer with the
employee during it.
grievance procedure
Preliminary
If any matter (including any disciplinary action taken by the Employer)
arises relating to the employee’s employment about which the employee is
dissatisfied, it shall be dealt with in accordance with either of the following
procedures. The first (the standard procedure) is in three stages and provides
for meetings to seek to resolve the matter, whilst the second (the modified
procedure) is in two stages where the matter is to be resolved in writing
without a meeting.
first standard
procedure
Step 1: statement of grievance
1 The employee must set out
the grievance in writing and send the statement or a copy of it to the
employer.
Step 2: meeting
2.1 The employer must invite the
employee to attend a meeting to discuss the grievance.
2.2 The meeting must not take
place unless –
(a) the employee has informed the
employer what the basis for the grievance was when he made the statement
under paragraph 6, and
(b) the employer has had a
reasonable opportunity to consider his response to that information.
2.3 The employee must take all
reasonable steps to attend the meeting.
2.4 After the meeting, the
employer must inform the employee of his decision as to his response to the
grievance and notify him of the right to appeal against the decision if he is
not satisfied with it.
Step 3: appeal
3.1 If the employee does wish to appeal, he must
inform the employer.
3.2 If the employee informs the employer of his
wish to appeal, the employer must invite him to attend a further meeting.
3.3 The employee must take all reasonable steps
to attend the meeting.
3.4 After the appeal meeting, the employer must
inform the employee of his final decision.
secondly modified
procedure
Step 1: statement of grievance
1 The employee
must —
(a) set out in writing
(i) the grievance, and
(ii) the basis for it, and
(b) send
the statement, or a copy of it, to the employer.
Step 2: response
2 The employer must set out his response in
writing and send the statement or a copy of it to the employee.
General requirements
3.1 Each step and action under
the procedure must be taken without unreasonable delay.
3.2 Timing and location of
meetings must be reasonable.
3.3 Meetings must be conducted in
a manner that enables both employer and employee to explain their cases.
3.4 In the case of appeal meetings
which are not the first meeting, the employer should, as far as is reasonably
practicable, be represented by a more senior manager than attended the first
meeting (unless the most senior manager attended that meeting).
3.5 The employee is entitled to
be accompanied at any meeting by a trade union employee or official or another
of the employer’s workers, who may address the meeting and confer with the
employee during it.
copyright Roderick Ramage
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