Grievance and discipline procedures at workBMJ 2004; 329 doi: https://doi.org/10.1136/bmj.329.7474.s193 (Published 06 November 2004) Cite this as: BMJ 2004;329:s193
Last month some new UK legislation made it mandatory for employers and employees to work out their differences before going to an Employment Tribunal, as Ruth McGuire explains
As from 1 October 2004, employers and employees are required by law to try and resolve problems before they escalate and have to be resolved by an Employment Tribunal.
The new procedures are governed by the Employment Act 2002 (Dispute Resolution) Regulations 2004. Non-compliance with the procedures could be costly. For example, employees may face a reduction in compensation if they win a case but have not complied with procedures. Conversely, an employer could face an increase in the amount they have to pay out to an employee if they have not complied with statutory procedures.
According to employment relations minister Gerry Sutcliffe, “Nobody wants to go through tribunal proceedings unless they have to, and yet research has shown that nearly two thirds of applications come from employees who have not discussed the problem with their employers first.”
Failure to comply with the statutory procedures can constitute automatic unfair dismissal (if the employee has the qualifying service of one year). The Employment Tribunal also has the power to increase a compensatory award made to an employee by between 10% and 50% where the employer has failed to follow the statutory procedure
So what does the new legislation involve?
The new requirements
The 2002 act covers workplace disputes in relation to:
Mandatory dismissal and grievance procedures
Mandatory grievance procedures
Sanctions for the increase and reduction of Tribunal awards for non-compliance with the procedures.
The standard procedure
The standard procedure consists of three steps that must be taken before any dismissal. This standard procedure will apply in most instances.
Step 1—Written notification
Employers must provide an employee with written information about the circumstances that have led to dismissal or disciplinary action being considered as an option for resolving a problem. Details about the problem should be clearly explained to the employee. A copy of this information should be given to the employee, together with an invitation to attend a meeting where the problem can be discussed.
Both employer and employee must take reasonable steps to attend the meeting that will enable the two parties to discuss the problem. The law gives the employee the right to be accompanied at a hearing and employees should be made aware of this. Employers also need to ensure that the meeting is held in a place that is accessible by the employee and/or the person they elect to accompany them to the hearing.
The main objective of the meeting should be resolution. If the meeting is genuinely about resolution then the employer can only make a decision about how to proceed with the complaint against the employee after rather than during the meeting. Attempting to make a decision during the meeting is counterproductive to the process of making an informed and balanced judgment. After the meeting, the employer should inform the employee of the decision and also of their right to appeal against the decision.
A further meeting should be held, if requested, in which an appeal against a decision can be made. An appeal meeting should be chaired by a more senior manager then the individual who chaired the original meeting and made the original decision. The decision from the appeal must be communicated to the employee.
The modified procedure
For serious cases involving gross misconduct that leads to dismissal, the procedure is similar but is a two, rather than a three, step process, which broadly comprises step 1 and step 3 of the standard procedure. The employer or manager dealing with the problem should set out in writing the alleged misconduct that led to the dismissal and provide reasons why the employee was considered guilty of the misconduct. The employee should also be informed of their right to appeal against dismissal. The appeal meeting forms the second step of the modified procedure.
The same principles of trying to resolve problems in the workplace before resorting to Tribunal proceedings apply to employees who believe they have sufficient grounds for lodging a formal grievance.
The standard statutory procedure for grievances is more or less the same as the procedures for an employer who decides to discipline an employee. The same three steps apply: the written statement; the meeting; and the appeal.
Under new legislation, grievances must be put in writing. The written statement should set out the grievance in detail. Legislation requires that employees give their employer up to 28 days to respond to a grievance complaint. Premature claims to a Tribunal will be automatically rejected.
Clare Murray, employment law partner at Fox Williams, says, “The new statutory disciplinary and grievance procedures are amongst the few pieces of employment legislation of which employers largely approve. They can understand the benefit of the new rules in helping them to be seen as dealing fairly and consistently with employees.”
However, she adds, “It is rather worrying though that very few [employers] are considering training for managers. As with all important procedures, it's not just having a written policy that counts, it's the way the employer applies it in practice that really matters; manager training is crucial in that process.”
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