Professional Documents
Culture Documents
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benchmarking HR policy and practice
Discipline, grievance and mediation
IDS HR Study 906 • November 2009
Page 2 Overview
3 The new Acas Code of Practice
A summary of the revised Code of Practice; transitional provisions; Q&A with George Boyce
and Keith Mizon of Acas; frequently asked legal questions
8 Disciplinary procedures
Scope and purpose; an informal approach; the formal process; examples of minor faults,
misconduct and gross misconduct
20 Grievance procedures
What is a grievance?; an informal resolution; the formal procedure; collective grievances
32 Case studies
East Sussex County Council introduces mediation
Derbyshire Constabulary seeks constructive solutions
The transitional provisions mean that some claims to which the ● Allow the employee to be accompanied at the
statutory procedures apply may not be heard by a tribunal until 2010. meeting
Decide on appropriate action
● Inform the employee of the decision in
result in: a formal warning being issued to a
worker; the taking of some other disciplinary writing
action, such as suspension without pay, ● Set out the nature of the misconduct or poor
demotion or dismissal; and the confirmation of performance, and the change in behaviour or
a warning or some other disciplinary action, improvement in performance required (with
such as an appeal. A grievance hearing is defined timescale) in first or final written warnings;
as any hearing that concerns the performance of make the consequences of further misconduct
a duty by an employer in relation to a worker. within the set period for the warning clear
Informal discussions or counselling sessions do ● A decision to dismiss should only be taken by
not attract the right to be accompanied unless a manager with the necessary authority
they could result in formal warnings or other ● Gross misconduct may call for dismissal
actions. without notice for a first offence; but a fair
disciplinary process must still be followed
Handling disciplinary issues
Five pages of the Code are set aside to explain ● Give examples of acts considered as gross
how to handle disciplinary issues. In summary, misconduct in your disciplinary rules
the Code says that employers should: Provide employees with an opportunity to appeal
● Appeals should be heard without
Establish the facts of each case
● Carry out investigations without
unreasonable delay
unreasonable delay ● Appeals should be dealt with by a manager
● In misconduct cases, different people should not previously involved in the case, wherever
carry out the investigation and disciplinary possible
hearing ● There is a statutory right to be accompanied
● There is no statutory right to be accompanied ● Employees should be informed of the result in
at a formal investigatory meeting, but writing as soon as possible
We asked George Boyce, Senior Policy Adviser at the How do you think tribunals will apply the 25 per cent
Acas Strategy Unit, and Keith Mizon, Director, uplift?
Individual Dispute Resolution at Acas, to explain some KM: We’ll have to wait for the first cases that fall under the
of the reasoning behind the new Acas Code of Practice new regime to reach employment tribunal to see how the
for disciplinary and grievance procedures. Code is interpreted – and even then, to be clear, we may well
need EAT decisions.
How has the Acas Code changed?
GB: The essence of the Code has remained the same. Why is mediation only in the foreword and not
I suppose the most obvious change is that it’s now much mentioned in the Code itself?
shorter. We wanted the Code to focus on the key principles of GB: There was a lot of debate on that point. We ultimately
handling individual workplace disputes. Employers can get took the view that if mediation was in the Code itself there
more detailed guidance in the Acas guide: Discipline and was a possibility that an unscrupulous party might seek an
grievances at work. adjustment at tribunal if it wasn’t offered or taken up for
The biggest change is to the Code’s status – not what it says. very good reasons. And also, we wanted people to
The Code was always taken into account at employment endeavour to find a solution themselves before reaching for
tribunal, but now tribunals can adjust any awards made by mediation.
up to 25 per cent for unreasonable failure to comply with it. KM: From an Industrial Relations perspective, the best way
To a certain extent, we’ve pressed the reset button to take us forward is for the parties involved in conflict to find a
back to the situation pre-2004. People weren’t happy with solution using the existing internal mechanisms without any
the prescriptive route that the SDRPs [the statutory dispute external involvement. Of course, that’s not always possible
resolution procedures were introduced in 2004 and repealed and independent third-party assistance can help the parties
in April 2009] had taken us down. Our aim now is to provide reach an agreed solution. But it isn’t necessarily helpful to an
greater flexibility – to set down broad principles that organisation’s IR climate for third-party intervention to be a
employers and employees can work with to find solutions first resort.
before issues escalate. We didn’t want to become prescriptive by building mediation
into the code – that’s exactly what the new Code is trying to
The definition of grievance is very open. Is this avoid. And anyway, mediation can really only work if both
deliberate? parties are fully on board. Mediation isn’t a silver bullet. It
KM: We’ve tried to avoid being prescriptive when it comes to needs to be used appropriately within the context of a conflict
definitions. I think a grievance can be broadly defined as management strategy – and sometimes other approaches
occurring when the employee’s expectation of his or her may be more appropriate. In addition, when you agree to
employer has not been realised – and an employer might mediation, there is an implication that there is scope for
consider disciplinary or other action when its expectation of movement. But from time to time either party – the employer
an employee has not been realised. or employee – might, for wholly legitimate reasons, decide
the issue is something they simply can’t compromise on.
The Code no longer sets out how to handle grievances
of former employees – was that intentional? Do you think the Code will reduce the number of cases
GB: Yes. The Modified procedure brought in under the SDRPs going to Employment Tribunal?
to deal with former employees with a grievance focused KM: You can’t measure the success of the Code on the basis
largely on dismissals and acted as a precursor to tribunal. We of a reduction in claims. That’s a simplistic measure and not
didn’t want to go back into that territory. The new Code is particularly helpful. There are too many other factors that
designed to help employers handle discipline and grievances might have an impact. Claims are currently going through
in the workplace. the roof because of the recession.
KM: The Code is written for HR, employees and employee The Code should be seen as part of an attempt to change the
representatives – not lawyers. Its aim is to give practical culture of dispute resolution. That’s what Gibbons [the
advice for handling disputes in the workplace. The aim isn’t Government commissioned Michael Gibbons to review the
to set down rigid rules on how to handle dismissal. SDRPs in 2006] was recommending. The aim is to help
GB: Under the SDRPs, the first thing people often thought organisations and employees resolve problems in the
about was how things would look at tribunal, rather than workplace themselves – possibly with third-party help – and
how the problem could be resolved. But the aim of the Code not through judicial determination. But changing culture is
should be to help employers deal with difficult situations not something you usually achieve overnight.
effectively – not simply how to cover themselves in the event GB: The Code is more about changing mindsets than policies
of a tribunal. We have placed a large emphasis on and procedures. We want to get away from the mindset that
encouraging employers to try to resolve discipline and the process for dealing with discipline and grievance is set in
grievance issues informally, where possible. stone.
Our legal experts from the IDS Employment Law Brief misconduct or poor performance. However, other types of
answer some frequently asked questions about the dismissal are not excluded from its scope, with the exception
new Acas Code of Practice. (The IDS Employment Law of dismissals by reason of redundancy and the non-renewal
Supplement, Disciplinary and Grievance Procedures, of a fixed-term contract. To avoid leaving themselves open
explains the law governing discipline and grievance to compensation uplifts, employers would be wise to make
procedures in the workplace in greater detail.) sure that all dismissal procedures follow the Acas Code.
What are the major differences between the old and Employers should also note that although the Code includes
the new systems? the recommendation that the employer allows an employee
The new Code offers greater flexibility than the SDRPs to be accompanied to a disciplinary or grievance hearing,
[statutory dispute resolution procedures] because at each the right to be accompanied is in fact a statutory right under
stage the parties have the option of departing from the S.10 of the Employment Relations Act 1999 (as amended by
Code if it is reasonable to do so in the circumstances. It also the Employment Relations Act 2004). Unlike the Acas Code,
takes into account the size and resources of the employer. it applies to all workers and not just those defined as
Employers will also particularly welcome the removal of ‘employees’ (ie those who work under a contract of service).
S.98A of the Employment Rights Act 1996, which made a A failure to allow a worker to be accompanied entitles him
dismissal automatically unfair if there was a breach of the or her to pursue a claim for compensation. This is therefore
SDRPs no matter how minor. one ‘recommendation’ that cannot be ignored and excused
on the ground of reasonableness.
On the downside, since the definition of what is
‘reasonable’ is somewhat subjective, there is no guarantee If the employee fails to attend a meeting what can
that an employment tribunal will agree that a departure the employer do?
from the Code was reasonable and in that sense there is less The Acas Code allows an employer to make a decision on the
certainty over when a breach of the Code could lead to an available evidence if the employee is ‘unable or unwilling to
adjustment in compensation. In terms of establishing attend a disciplinary meeting without good cause’.
fairness in dismissal cases, many of the requirements of the However, since this requires the employer to decide whether
revised Code are drawn from the previous Code and there an employee has ‘good cause’ not to attend, employers
are therefore no real surprises. But the fact that there is now should exercise caution before taking this path.
a financial penalty for failing to comply with the Code
means that each individual point becomes a potential area If an employee has failed to follow the Code does the
for dispute – certainly when it comes to remedy – instead of employer still have to comply?
part of the overall picture of reasonableness. The Code does not specify what happens if one party fails to
comply with their side of the procedures. Under the old
How significant will the changes be in practice? SDRPs, in this situation the other party was relieved of their
Those whose procedures complied with the SDRPs are obligation to follow the remaining steps of the procedure.
unlikely to find it difficult to accommodate the new Code as Now, it must be assumed that the employer should still
it does not depart significantly from the old three-step comply with the Code even if the employee has not, unless
procedure. Practitioners will probably find it less it is reasonable for them not to do so. This is likely to come
cumbersome since it need not be followed to the letter in all down to the type and extent of the failure involved.
circumstances. However, all employers should check that
their procedures contain the minimum steps set out in the Do employers have to offer mediation?
new Code and amend them if necessary. As far as tribunal There is no legal obligation or incentive to use mediation in
proceedings go, the decision to keep the financial penalty employment disputes. Although there is a nudge towards it
means that these are likely to involve protracted legal in the foreword, reflecting the recommendations of the
arguments over compliance with the new Code and it is Gibbons review, this is non-binding and there is no
hard to imagine that traffic through the tribunal system will requirement to mediate in the main body of the Code.
be reduced. Consequently, there will be no adjustment to any tribunal
award if the parties have failed to attempt mediation.
What are the pitfalls?
One potentially significant change is that there is now a Does the Code apply to ex-employees?
requirement to follow the Code in respect of warnings as It is unclear whether the Code applies to grievances raised
well as dismissals. Although there is no freestanding right to by former employees once the employment relationship has
bring a tribunal claim for a failure to act fairly in issuing a ended. The fact that the adjustment of awards provisions
warning, it will become relevant should the employee be apply to breach of contract claims, which can only be
dismissed at some later stage with that warning having presented to an employment tribunal where it arises or is
been taken into account. outstanding on the termination of employment, suggest
There is also some uncertainty over the scope of the Code. It that it does. Our advice would be, until this is clarified, to
is clear that it applies to dismissals based on the employee’s assume that it does.
Disciplinary action against a trade union rep ● Workers have a statutory right to be
The Code states that the normal disciplinary accompanied
procedure should be followed when action is being ● Communicate the outcome of the appeal
considered against a trade union representative. without unreasonable delay
However, it suggests that it is advisable to discuss
the matter at an early stage with a union official – Where disciplinary and grievance cases overlap
with the employee’s agreement. The Code states that ‘where an employee raises
Criminal offences a grievance during a disciplinary process, the
Being charged or convicted of a criminal offence disciplinary process may be temporarily
is not usually in itself reason for disciplinary suspended in order to deal with a grievance’. If
action. Acas says employers should consider the cases are related they may be dealt with
what effect the charge or conviction has on the concurrently.
employee’s suitability to do his or her job. Collective grievances
Handling grievances The Code does not apply to grievances raised on
behalf of two or more employees by a trade
The Code’s principles for handling grievances
union representative or other appropriate
are, in summary:
workplace representative.
Explain the nature of the grievance
● If the grievance cannot be resolved Workplace mediation
informally, employees should raise a formal The use of an independent third-party mediator
grievance without unreasonable delay in to help resolve a workplace dispute has not been
writing built into the Code itself. Instead, the possible
Hold a meeting with the employee use of this type of alternative dispute resolution
● Arrange a formal meeting without
is highlighted in the foreword. Acas suggests that
unreasonable delay where issues cannot be resolved in the workplace
‘employers and employees should consider using
● Allow the employee to explain his or her an independent third party’, which could be an
grievance and how it should be resolved internal or external mediator.
● Consider adjourning the meeting for any
investigation that may be necessary Acas Guide
● Allow the employee to be accompanied at the Acas has produced a more detailed non-
meeting statutory guide to discipline and grievances at
work to accompany the Code of Practice. The
Decide on appropriate action
Guide contains a number of sample disciplinary
● Decisions should be communicated in writing
and grievance procedures. Tribunals are not
without unreasonable delay; inform the
obliged to take the Guide into account when
employee he or she can appeal if not content
reaching a decision.
with the action taken
Allow the employee to take the grievance further References
● Employees should inform their employer of
The Acas Code of Practice, Disciplinary and
their ground for appeal in writing and grievance procedures, and the Acas Guide:
without unreasonable delay Discipline and grievances at work, can both be
● Appeals should be heard without downloaded from www.acas.org.uk
unreasonable delay Acas is an independent statutory body that aims to
● The appeal should be dealt with by a manager foster better employment relations. It provides
not previously involved in the case, wherever information, advice and training, and works with
possible employers to prevent or resolve problems.
Disciplinary procedures
Following the repeal of the statutory dispute resolution procedures and the introduction of the
revised Acas Code of Practice, we examine the disciplinary policies of 29 UK organisations. While
most of the employers we spoke to have reviewed their policies in light of the new Code, few have
found it necessary to make significant – if any – changes.
Disciplinary procedures typically include examples of the ● criminal offences, whether committed on official duty
offences considered to constitute minor faults, misconduct or otherwise, that directly affect an employee’s ability
or gross misconduct. Below we provide some of the most to carry out their job, or that have serious implications
common examples given in the 29 policies we reviewed. concerning the propriety of them continuing in their
job
Minor faults
● serious insubordination, refusal to co-operate or neglect
Minor faults are typically dealt with informally. They may of duty
include:
● serious breach of trust and confidence; unauthorised
● poor time-keeping disclosure of confidential information
● poor attendance ● persistent bad time-keeping, despite formal recorded
● unsatisfactory performance warnings; prolonged or repeated unauthorised absence;
● bad language falling asleep on the job
● surly and rude behaviour. ● financial irregularities on official duty; engaging in
unauthorised employment during contracted hours;
Misconduct
running a money-lending business; unauthorised private
Any offence considered to constitute misconduct is likely to trading; betting or gaming on work premises;
invoke disciplinary procedures. Examples include: bankruptcy and insolvency
● unauthorised absence from work ● oppressive, violent, bullying or disrespectful behaviour;
● frequent or persistent lateness and absenteeism deliberate damage to property; fighting or physical
● unacceptable performance assault
● persistent time-wasting ● indecent and immoral behaviour; sexual misconduct
● persistent failure to meet work targets and deadlines ● discrimination, abuse or harassment on the grounds of
● incompetence in performance of duties race, sex, sexual orientation, age, disability, religion,
● minor breaches of confidence belief, colour or ethnic origin
● contravening minor safety practices, such as failing to ● use of drugs and alcohol at work; being unfit for work
wear protective clothing due to alcohol or prescription drugs
● raising grievances without good reason ● serious misuse of company computers, systems and
● refusal to obey a reasonable instruction equipment; deliberate damage of company products;
● unauthorised use of the telephone reckless or serious misuse of an organisation’s vehicle;
● excessive personal use of the Internet or e-mail malicious damage or sabotage
● inappropriate dress ● serious infringement of health and safety rules,
● objectionable or insulting behaviour endangering the life of another person
● smoking on company premises ● conduct that adversely affects the reputation of the
● minor or unwitting acts of discrimination, harassment or organisation and the effective discharge of its business;
victimisation misuse of the organisation’s name; rudeness to customers
or suppliers
● careless destruction or use of the organisation’s property.
● fraud; falsification of qualifications or records; clocking in
Gross misconduct or out for another employee; false claims for business
Instances of gross misconduct lead to immediate disciplinary expenses; accepting a gift that may compromise or
action and typically include: conflict an employee’s obligations to the organisation
● serious breaches of the terms and conditions of ● serious breach of the Data Protection Act; unauthorised
employment access to computer records.
Issue arises
* Informal discussions/mediation
Dealing with problems in this way can often lead to speedy
Resolution resolution of issues. If the issue cannot be resolved informally Investigation
or by mediation where possible, the formal procedure will need if appropriate
to be followed.
Resolution
Employee can appeal within 5 working days
of receipt of written decision
Appeal meeting
Give reasonable notice
*Action taken will depend on the severity of the misconduct and may lead to one or more of the possible stages being omitted.
have been made, about an employee’s conduct. whether they should instigate the formal
These range from minor issues, such as capability procedure:
persistent time-wasting, to more serious
● Is the individual entirely at fault or has their
offences, such as violence. Organisations may
performance/attendance been affected by
have separate policies in place to deal with
other factors?
capability issues, poor attendance,
whistleblowing, discrimination, harassment and ● Is the decision to use the capability procedure
bullying. process based on fact and would it be
considered ‘reasonable’?
Defining misconduct
Most of the procedures we examined give ● Sometimes, despite how hard the employee
examples of the types of offences for which tries or how much training and support is
disciplinary action can be invoked. They provided, they are unable to perform the role
typically split offences into two categories: to the required standard. In these cases,
misconduct that is likely to lead to formal action is still appropriate.
disciplinary action being started; and more ● Prior to any formal action being taken for
serious gross misconduct for which immediate capability, a Performance Improvement Plan
action will be taken. must have been in place and the individual
given reasonable time to improve.
Some employers also provide examples of minor
faults, which tend to be dealt with informally. Dealing with poor attendance
Organisations generally include a statement Specific absence policies are generally used to
making it clear that the examples of misconduct deal with absence issues. But disciplinary
and gross misconduct they provide are not procedures may be applied when absence is
exhaustive. The box on page 9 lists some of the discovered to be wanton.
example offences that are commonly listed in
disciplinary procedures. Criminal offences
Employees charged with a criminal offence do
Capability issues not necessarily face disciplinary action, provided
Poor performance is a grey area. It is often the offence is not work-related. Moreover,
difficult to tell if underperformance is due to a conviction for a criminal offence should not
lack of ability or a lack of effort. In the first result automatically in an employee’s dismissal,
instance, most organisations seek to address although imprisonment will usually lead to
such issues through their standard performance dismissal because the employee will be unable to
management arrangements. This usually fulfil his or her contract.
involves agreeing performance targets and
reviewing progress on a more regular basis. Acas has produced a non-statutory guide to
Employees may be offered some form of discipline and grievances at work to accompany
coaching, training or counselling to give them an its Code of Practice. According to the Guide:
opportunity to improve. ‘The question to be asked in such cases is
whether the employee’s conduct or conviction
If poor performance continues, organisations merits action because of its employment
may turn to their formal capability procedures. implications.’ Acas suggests that the following
In general, these are used where sub-standard guidance should be borne in mind if an employer
performance is due to a lack of appropriate skills thinks such conduct warrants disciplinary
or a medical complaint. action:
If an employee possesses the ability to do the job ● The employer should investigate the facts as
but chooses not to, the issue becomes one of far as possible, come to a view about them
misconduct. It is then dealt with under the and consider whether the conduct is
disciplinary procedure. sufficiently serious to warrant instituting the
Barclays recognises that conduct and capability disciplinary procedure.
issues can occasionally overlap. It suggests that if ● Where the conduct requires prompt attention,
managers have any doubts they should contact the employer need not await the outcome of
HR. The bank also provides the following the prosecution before taking fair and
guidance to help line managers determine reasonable action.
The formal process ● Set up regular one-to-one meetings with the employee to review
each aspect of their performance giving positive feedback where it
Where an informal approach has failed, or an is due and constructive feedback where required. Make notes after
employee’s misconduct is more serious, employers the meetings and communicate what has been agreed with the
may invoke their formal disciplinary procedure. employee.
The first step is to carry out an investigation into
● Seek advice from your own manager about the situation and
the alleged misconduct, during which the explain what steps you have taken to try and resolve the issue.
employee may be suspended on full pay.
Employees should then be invited to a disciplinary ● Contact your HR representative. If they are involved from the
hearing, where a decision is made as to whether beginning, they will be able to provide you with better support
and there may be an opportunity to try mediation should the
any sanction should be imposed. Employees are
situation become more serious
usually given just one chance to appeal.
● If, after several meetings, the improvement is not sufficient or fails
Conducting an investigation to be maintained, you will need to work together with the
employee to design an action plan to be reviewed on a regular
Before any disciplinary action is taken, basis. You will need to make it clear to the employee that if their
employers should first carry out a detailed performance does not improve despite the measures put in place,
investigation to establish the facts. Employees the formal procedure may need to be followed.
should be informed promptly that a complaint
● If the employee’s performance does not improve after all these
made against them is being investigated. The
efforts, you will need to refer to the Performance/Capability/
Acas Code states that: ‘It is important to carry Misconduct Formal Procedure.
out necessary investigations of potential
disciplinary matters without unreasonable Establishing the facts
delay.’ Few of the policies we examined The purpose of an investigation into an
prescribed fixed time limits for conducting allegation of misconduct is to establish all the
investigations, although one stated that they facts, not to build a case against the employee.
should be completed within 30 days. However, in The manager carrying out the investigation
practice investigations can drag on as employees should be looking for evidence that both
may be unavailable on long-term sick leave. supports and refutes the allegations.
Line managers investigate In gathering all the relevant facts, line managers
The direct line manager of an employee facing may look for evidence from:
possible disciplinary action often carries out the ● the people directly involved and any witnesses
investigation. However, in some situations an
independent investigating officer is appointed – ● documents, including letters and e-mails;
particularly if there is a conflict of interest. receipts, if it is an issue involving finances
● physical evidence, such as damaged property that suspension may be necessary ‘where
relationships have broken down, in gross
● medical evidence in cases of violence.
misconduct cases or where there are risks to an
One employer’s policy we examined said that the employee’s or the company’s property, or
investigation may involve a search of the responsibilities to other parties’.
employee’s locker.
Suspending with pay
Investigatory meetings Employees’ pay while on suspension is likely to
To gather all the facts of a case, line managers include any regular payments, such as a shift
may hold an investigatory meeting – although premium. However, it may exclude occasional
this may not be considered necessary. The Acas payments, such as overtime.
Guide suggests that employees should be given
advance warning and time to prepare if a A temporary measure
meeting is held. Suspension during an investigation should be for
as short a period as possible and should be kept
Barclays sets out the following guidelines on under review. Company practice varies
how to conduct an investigatory meeting: considerably. One organisation’s disciplinary
● Explain to the individual that this is an policy stated that suspension is normally for a
investigatory meeting into their conduct maximum of two days. At another, employees
suspected of gross misconduct are suspended for
● Emphasise that this is not a disciplinary no more than five days while investigations are
hearing carried out. One company allowed employees to
● Put the facts to the employee, go through any appeal if suspension was for longer than three
documentary evidence and invite them to weeks and they were not notified of a proposal
comment to dismiss.
● If the explanation is incomplete, inconsistent Remaining available during suspension
or evasive, probe further – but remember it is Choice Support Group notes in its disciplinary
not an interrogation policy that: ‘It is a condition of suspension that
● Inform the employee at the end of the meeting the employee is available during normal hours to
that further consideration will take place and attend any meetings deemed necessary and does
they will be informed of the outcome as soon not unreasonably delay any disciplinary
as possible proceedings without adequate and acceptable
● Remind all present that the issues discussed reasons (eg through failure to attend a
are confidential. disciplinary meeting).’
● the possible consequences of the hearing ● The level of possible action, particularly in
serious cases that may result in dismissal and in
● the date, time and venue of the disciplinary some cases loss of tenancy
hearing
● The right to be accompanied by a colleague,
● their right to be accompanied at the Staff Forum or Trade Union representative
disciplinary hearing by a companion (a work
● If appropriate, the timescale in which the
colleague or trade union representative). employee is required to submit any
documentary evidence in support of their own
Giving notice of a disciplinary hearing case and the name of the person accompanying
The Acas Code states that: ‘The meeting should them to the hearing.
be held without unreasonable delay whilst
Copies of any documentary evidence to be used
allowing the employee reasonable time to
are also provided and a copy of the disciplinary
prepare their case.’ In practice, what employers procedure enclosed.
interpret as ‘reasonable’ varies. The notice
employers give to employees to prepare for a
on the employee’s fitness to attend; and how
disciplinary hearing ranges from a minimum of
similar cases have been handled in the past.
two days to a maximum of ten days. Most
organisations, however, do not specify a set
Conducting the meeting
notice period and many mirror the Acas Code in
promising reasonable notice. Choosing a suitable venue
Rescheduling meetings Some employers provide guidance on choosing a
suitable venue for the disciplinary meeting. The
The Acas Code establishes that ‘employers and
Acas Guide suggests a room where there will be
employees (and their companions) should make
no interruptions. It is particularly important to
every effort to attend the meeting’. However,
take into account any physical disability of the
employers generally allow for meetings to be employee or his or her companion. Barclays
rescheduled if the employee concerned provides notes that: ‘When making arrangements for
a good reason, or if the employee’s companion formal disciplinary, capability or grievance
cannot attend the scheduled meeting. Employers meetings it is important to identify whether the
who cover this point in their procedures employee has any specific requirements that
typically allow the hearing to be postponed for would require a reasonable adjustment to be
not more than five working days (as suggested made to enable them to participate fully in
by the Acas Guide). proceedings.’ Employers may also need to
consider providing an interpreter.
Failure to attend
If an employee is repeatedly unable or unwilling The right to be accompanied
to attend a meeting, employers may make a Employees have a right to be accompanied by a
decision in his or her absence. According to the colleague or trade union official at disciplinary
Acas Guide there are a number of considerations hearings. Companions have a role in meetings
employers need to take into account before that extends beyond simply offering support.
coming to this conclusion. These include: the They can address disciplinary meetings, put the
seriousness of the disciplinary issue; the employee’s case and respond on the employee’s
employee’s disciplinary record; medical opinion behalf to any views expressed during the
meeting. But they cannot answer questions on ● the manager may question the employee’s
the worker’s behalf, address the hearing if the witnesses and the employee may re-examine
worker does not wish it or prevent the employer these witnesses if new questions have been
from explaining its case. raised during the proceedings
Organisations tend to allow paid time off to ● the employee/representative makes a closing
companions, both to familiarise themselves with summary for the defence
the case and to attend meetings. ● the manager may respond to any new issues
raised by the employee’s side
The disciplinary panel
The disciplinary hearing is typically conducted ● the panel retires to make a decision.
by an appropriate line manager. In instances The panel may seek clarification of particular
where a manager is charged with misconduct, issues at any point during this process. The
the hearing is usually chaired by a more senior manager or employee/representative may seek
manager. The Acas Code notes that: ‘In an adjournment of the hearing if either side feels
misconduct cases, where practicable, different further investigation of the issues is necessary.
people should carry out the investigation and
disciplinary hearings.’ Communicating the decision
The panel may also include a representative The Acas Guide suggests that employers should
from the HR department to advise on correct adjourn the meeting before making a decision
procedure. Another employee may sit in on on disciplinary action to allow time for
hearings to take notes. reflection. Some disciplinary policies state that
the employee should be informed of the
Calling witnesses decision verbally straight after the meeting or at
Witnesses can be called to disciplinary hearings least on the same day. Confirmation in writing
by either the employee or management, provided usually follows no more than five days later. If
their testimony is judged to be pertinent to the the decision goes against the employee, the
issue under consideration. In its disciplinary employer has to notify him or her of the right
policy, Oxfam GB states that: ‘Witnesses should to appeal.
not be called to attest to the character of another
employee but to help establish facts not Disciplinary sanctions
previously established.’ Oxfam also notes that ‘if A number of factors are taken into account in
the cost of bringing witnesses to the meeting is arriving at what is considered the most
excessive due to the distance involved, telephone appropriate sanction against an employee who
conferencing facilities could be considered’. has been found guilty of misconduct. These
Order of business include: the type and seriousness of the offence;
precedent; the employee’s record and position in
The following is typical of the suggested
the company; length of service; and any ‘special
structure of a disciplinary hearing:
mitigating circumstances’. When reaching a
● the manager presenting the complaint decision on what disciplinary action should be
summarises the case against the employee taken, Choice Support states that: ‘The chair
should take account of the employee’s
● the manager questions the witnesses he or she
disciplinary and general record, length of
has called to support the case
service, actions taken in similar cases and the
● the employee or his/her representative may explanations given by the employee.’
question the manager’s witnesses, but he or
she is not allowed to make statements or Verbal warnings
assertions First and minor offences tend to be dealt with by
line managers and result in an informal warning.
● the manager may re-examine his or her Although such warnings are put on an employee’s
witnesses if new questions have been raised personal record, they are not necessarily part of
● the manager summarises the case against the the formal disciplinary process.
employee and makes a recommendation
However, while the warnings are considered
● the employee/representative responds to the informal, this does not mean that no action is
charges and calls his or her witnesses to taken. Employees may, for example, be offered
present evidence coaching or training to improve their
Disciplinary hearing in an employee’s absence on appeal, turning an unfair dismissal into a fair
An employer was wrong to proceed with a one. It does not matter whether the appeal is a full
disciplinary hearing in the employee’s absence re-hearing or a review; what matters is whether the
when she was signed off sick. disciplinary process as a whole was fair. In this case,
N had been suspended over a number of the employer’s failure to provide a deaf employee
allegations including bullying and harassment and with an interpreter at his dismissal hearing was
her disciplinary hearing was postponed more than rectified by an appeal hearing where one was
once on the basis of her doctor’s evidence that she provided and he was accompanied by his sister, a
was not fit to attend. However, her employer went qualified teacher of deaf people.
ahead with a hearing in her absence when it Taylor v OCS Group Ltd 2006 ICR 1602
learned that N had been in negotiations with a
new employer, and dismissed her. The dismissal was Ill-health dismissals
unfair because the employer should not have held Employers should not set themselves up as medical
a hearing in her absence unless there was experts; in cases of long term sickness absence it is
‘compelling evidence’ that she was ‘pulling the essential to consult the employee about his or her
wool over her own doctor’s eyes’ or there was medical condition.
authoritative medical evidence to the contrary. D was dismissed on the ground of ill health on the
William Hicks and Partners (A Firm) v Nadal EAT basis of a report prepared by a company doctor
0164/05. who had not personally examined him. His
dismissal was unfair because D had not had the
Investigating misconduct opportunity to state his case and his employer had
When an employee is charged with misconduct the not obtained a full medical report before deciding
employer must carry out such investigation as is to dismiss him.
reasonable in the circumstances.
East Lindsey District Council v Daubney 1977
B was charged with dishonesty in relation to staff ICR 566
purchases, which included charging an expensive
pair of sunglasses at the cost of a cheaper pair. In a The right to be accompanied
judgment that has become the standard test of Even if an employer considers a warning to be
fairness in conduct dismissals, the Employment ‘informal’, if it is taken into account in subsequent
Appeal Tribunal held that for a conduct dismissal to disciplinary action a tribunal will view it as formal
be fair, the employer must have a genuine belief in action attracting a right to be accompanied.
the employee's misconduct, which must be based
F-B and H were called to disciplinary hearings, one
on reasonable grounds, and the employer must
for driving through a red light and the other for
have carried out such investigation into the matter
poor attendance. LU described the hearings as
as was reasonable in the circumstances.
‘informal’ and denied both workers the right to be
British Home Stores Ltd v Burchell 1980 ICR 303 accompanied by their trade union representatives.
Rectifying an unfair procedure at appeal Both were given ‘informal oral warnings’ that were
Procedural defects during a dismissal can be put confirmed in writing. Since the warnings formed
right on appeal as long as the appeal is part of their disciplinary record, they were found to
procedurally fair and thorough and the decision be formal warnings and the employees had been
maker is open-minded. denied their right to be accompanied.
If the employer has not followed fair procedures London Underground Ltd v Ferenc-Batchelor;
when dismissing an employee this can be put right Harding v London Underground Ltd 2003 ICR 656.
performance. And employees are made aware that right to instigate action at whatever level they
any further misconduct will almost certainly lead think appropriate.
to formal disciplinary procedures being invoked. Written warnings should set out the nature of
the misconduct and the change in behaviour
Issuing written warnings
required. They also tend to state that any further
If an employee’s conduct fails to improve – or if misconduct will automatically lead to more
an offence is serious enough in its own right to serious disciplinary measures being taken.
justify tougher action – organisations typically
Allianz states that verbal and written warnings
issue a formal warning in writing. This may be
should establish:
followed by a final written warning if there is no
improvement – although employers reserve the ● the reason for the warning
Grievance procedures
Employers have made few changes to their grievance procedures following the repeal of the
statutory dispute resolution procedures. Most continue to follow Acas guidance closely. Grievance
procedures tend to be more concise than disciplinary policies, and establish a process based on three
basic steps: submitting a written grievance; holding a meeting before reaching a decision; and
allowing employees to raise an appeal. Our research is based on an analysis of the grievance
procedures from 29 employers.
Employee will:
submit a grievance in writing (within 10 working days of receiving a response if the
informal route has been followed)
give clear details of your grievance:
what happened at the informal stage (if applicable)
what they want as the outcome
if they wish to be represented or accompanied, and
who that is going to be
send it to your manager, or the confirming officer, if your grievance is with your
own manager.
Manager replies
Within 10 working days the manager will aim to:
write to the employee:
ask them to attend a hearing to discuss their grievance
ask them who will be present
advise them of their right to be accompanied, and
conduct any investigation that may be needed.
Consider mediation
If both parties are willing:
The manager will:
Grievance hearing suspend the hearing,
At the hearing, the manager will: contact the HR case manager to seek
listen to their grievance mediation, and
ask any relevant questions those involved will try to resolve the
review any other evidence issue with a mediator.
consider what happened at the informal stage, and
ask if mediation can resolve the issue. Employee:
informs manager of outcome of
mediation, and
returns case for decision.
Close of hearing
The manager will:
reconvene (if necessary)
sum up
consider their case
make a decision whether to uphold, partially uphold
or dismiss their grievance, and
decide what action, if any, is required.
➡
If not or if issue unresolved
Grievance to be submitted in
writing to line manager's
manager within
1 month of incident or 10
➡ Stage One Grievance
working days in case of
➡
performance development
Grievance to be submitted in
➡ Stage Two Grievance
writing to the next senior
manager within 10 working
days of Stage One decision
Process concluded
No further stages of grievance
Keith Mizon, Director, Individual Dispute Resolution at We’re steadily growing this service. But it takes time to train
Acas National, discusses the mediation services conciliators. And it has been challenging given the tsunami of
offered by Acas. tribunal claims we’ve been involved with as a result of the
economic situation. That said, between April and September
What is mediation?
this year we handled 3,500 referrals from our Helpline – and
Mediation involves a neutral third-party trying to assist two in over 70 per cent no tribunal claim ended up being made.
or more parties reach a voluntary resolution of a dispute. The
key to successful mediation is that the mediator remains Do you provide mediation services in situations
independent and impartial. And the parties involved must be unlikely to end up at tribunal?
reassured about the confidentiality of the process. The The Department for Business, Innovation and Skills fund our
mediator does not impose a resolution – although that’s not statutory work. But we also provide a charged service for
to say a mediator won’t make suggestions. Ultimately, it’s for individual disputes that couldn’t be resolved through judicial
the parties themselves to decide the resolution. determination – for example, when people simply fall out
Mediation can happen face-to-face, over the phone, using with each other. And we offer a Certificate in Internal
videoconferencing facilities or by e-mail. All sorts of media Workplace Mediation programme so that organisations can
can be used. It doesn’t matter as long as communications are train their own people to act as mediators.
opened up and the parties engage in trying to find a solution. Can an internal mediator be impartial?
Are mediation and conciliation different? Internal schemes probably work best for large organisations.
The vocabulary of dispute resolution can sometimes confuse It’s more difficult for smaller, single site companies to get over
people and it’s not always helpful to get hung up with labels, the impartiality hurdle. But the training can still prove
which can often have more to do with context and history. A beneficial in helping line managers improve their skills when
traditional view, largely based on collective dispute it comes to handling difficult conversations about discipline
resolution, is that conciliators tentatively suggest, mediators and grievance. The importance of training managers in the
recommend, and arbitrators decide. But these days I think it’s skills to handle these situations is often overlooked. You can
more helpful to think of mediation and conciliation as the have excellent policies and procedures, but are your
same thing, although there may be different models of each managers trained and equipped to apply them effectively?
– for example: facilitative, transformative, evaluative and A three-month time limit applies to most employment
directive. tribunal claims. Does this make it hard to promote
When is it time to seek mediation? mediation?
It’s important to think through when best to offer mediation It’s well known that during the consultation about the new
and to ensure your procedures are flexible as to when it can tribunal regulations Acas argued that they should allow
be provided. It shouldn’t be ruled out at any stage. But discretion for employment tribunals to allow longer than
generally the earlier the better – before people have dug in three months where mediation and conciliation were being
their heels, but not before they have had a go at resolving attempted. Sometimes mediation fails simply because the
things directly. If mediators are involved too early they can mediator runs out of time. That said, the process can’t be
get in the way of an internal resolution. open-ended – one party might seek to string it out forever.
And anyway, from the mediator’s perspective, having a
What mediation services do Acas offer? deadline can be very helpful in concentrating people’s minds.
We have a statutory commitment to offer mediation to
employers and employees involved in an employment Can mediation reduce the number of cases going to
tribunal claim, and we manage to broker a resolution in tribunal?
about three quarters of such cases. All other things being equal, we believe PCC could
potentially make a significant dent in the number of
From 6 April, Acas also has a statutory power to take on cases
employment tribunal claims. But the overall figure won’t
that could be the subject of an employment tribunal claim.
necessarily go down. There are so many other factors that are
We call this pre-claim conciliation (PCC). In fact, it isn’t new.
out of our control – not least the economy.
But it’s only now that we have the resources to go out
looking for these cases. Can you help resolve collective grievances?
Our Helpline receives over a million calls every year – mostly Unlike individual disputes, most collective grievances often
but by no means exclusively from employees. If an adviser have nowhere else to go – a judge can’t make a ruling on an
thinks the caller is likely to lodge an ET1 claim form [an argument over pay or conditions. We offer conciliation as an
application to an employment tribunal], or the employer impartial, independent third-party to help parties reach an
caller is likely to be the subject of a claim, he or she will agreement. If that fails, we can offer directive mediation or
suggest our PCC service. An Acas conciliator then talks arbitration. Conciliation of this type should only be sought
through the issue in more detail and contacts the other after internal machinery has failed. It is far healthier for
party involved to determine whether they are open to organisations to reach agreements in-house than become
mediation. reliant on calling in a third-party to settle wage disputes.
Mediation can be used at any stage to help the managers to manage their teams more effectively
parties involved reach a mutual agreement. Even on a day-to-day basis. The Acas/CIPD guide
where an employee has lost a grievance case states: ‘Training staff in mediation skills generally,
against his or her immediate line manager after to encourage the right management style and the
appeal, mediation may be used to help rebuild organisational capacity to deal with conflict on a
working relationships. And in some instances, a day-to-day basis, is a good way to help prevent
mediator may be called in to help hammer out a disputes happening in the first place.’
financial settlement and avoid a tribunal.
Acas and other mediation services offer
A voluntary process certificates in workplace mediation. Experience is
All proponents of mediation agree that then vital to help mediators hone their skills and,
mediation can only be successful if all parties perhaps most importantly, build their confidence.
enter into it of their own accord. All parties must
Mediators may have to handle emotive subjects
be engaged with the process and be ready to
and emotional people. It is therefore important
compromise to find a solution. Mediation
that they have support networks in place and
cannot work where an employee has been
that provision is made for ongoing training and
coerced down this route – it is vital that those
professional development.
involved are ready to talk openly about their
issues and want to find a way forward. Best of both worlds
In practice, employers with their own in-house
In-house or third-party mediation mediation services may also call in external
Mediation services are available from a number mediators from time to time. A third-party
of not-for-profit and private specialist mediator may be used because internal
organisations. By using a third-party mediator, mediators already have some involvement in a
employers can help reassure staff that the process case and would not be impartial. In some
is independent and completely confidential. instances, the case may be considered too
Establishing an internal pool of mediators complex for the internal team and a more
experienced professional mediator may be
Some employers – such as East Sussex County
preferred.
Council and Derbyshire Police – have
established their own in-house mediation teams.
The mediation process
This is likely to be a more realistic option for
larger organisations that can better reassure The exact approach taken to mediation may
disputants that they can call on internal vary depending on the nature of a particular
mediators from a different part of the business to case. However, broadly speaking, the key
help ensure impartiality. Employers that have set elements remain the same.
up in-house pools of mediators argue that they Arranging mediation
can be more effective than those provided by a One of the parties involved in a dispute – often
third-party as they have a better understanding the line manager – first contacts a scheme
of the organisation’s culture. co-ordinator to request mediation. A mediator is
Training mediators then chosen and he or she contacts both parties
Organisations that are thinking of setting up to explain what the mediation process will
internal mediation teams need to arrange involve. The mediator must gain their agreement
suitable training. They also need to give thought to participate in mediation and to compromise
to how to select staff to become mediators. to find a solution.
Organisations should aim to involve a good Maintaining confidentiality
cross-section of staff. Even if they then do not go
Before the mediation itself takes place, both
on to actively mediate any cases, internal
parties are usually required to sign a
mediators can help embed a culture of mediation
confidentiality agreement. It is important that
within an organisation.
the parties involved in mediation are assured of
Moreover, developing the skills required of a the confidentiality of the process. The process is
good mediator – encompassing active listening, more likely to address the underlying issues if the
conflict management, negotiation, problem- participants feel they can be open and honest in
solving and questioning – can only help line their discussions.
We asked David Liddle, founder of The TCM Group – a How does the mediation process work?
leading provider of mediation services – why UK A referral is made to either TCM or an internal co-ordinator
employers should consider mediation and how it who formalises the arrangement and advises the parties.
works in practice. The mediator then talks to the parties on the phone and
answers questions about the process – the dispute itself is
What is mediation? not discussed at this stage.
Mediation, a major element of Alternative Dispute
The mediation itself takes place in the space of one full day.
Resolution (ADR), is a process whereby a neutral third party
First the mediator meets each party separately to let them
intervenes in a workplace conflict or dispute to assist the
air their grievances. This in itself can be quite cathartic
parties in reaching a satisfactory outcome. The mediator
even before the parties have been brought together.
isn’t there to apportion blame or judge. They are there to
Unlike most other mediators, we run two pre-mediation
facilitate an open exchange of views and help the
sessions. At the second the mediator is more active and
conflicting parties restore their relationship.
asks more challenging questions. The aim is to get each
Why mediate? party to consider carefully what they want to say and how
Employers put a lot of effort into creating an engaging and they think they should say it to help ensure a constructive
productive workplace culture. But when it comes to conflict meeting.
at work, formal dispute resolution procedures can be After lunch the parties get together. There are clear ground
adversarial. Investigations can drag on; managers may rules and a confidentiality agreement. Both parties are
become stressed; and employees can end up off work sick invited to speak in turn, uninterrupted. We then encourage
for months. Once a decision has been made there are a free exchange of views and ideas and help the parties
typically no processes in place to help the parties involved construct an action plan. The mediator is non-directive and
rebuild their working relationship. never suggests a solution.
Mediation offers an approach to dispute resolution that fits How do you stop issues resurfacing?
with employers’ values. Mediation is a constructive It’s almost inevitable that conflict will reoccur. People who
approach that focuses on relationships in the past, the have been in a dispute don’t become best friends over night.
present and in the future. People feel listened to and can We offer a 12-month period of follow-up support so people
talk openly in a safe environment. aren’t just left to their own devices.
When does mediation work best? How can I measure the impact of mediation?
Mediation is most effective when both parties are If you’re looking to put together a business case for
committed to entering into a dialogue and are engaged mediation it is advisable to start by carrying out a ‘Conflict
with the process. It works well in very complex situations MOT’ of your current conflict processes. The MOT examines
where conflicts feel completely intractable – where the the cost of conflict to your business in terms of HR and line
parties are desperate to find a solution because of the manager time. Using mediation frees HR to focus on
impact the dispute is having at work and at home. strategy and helps avoid the cost – in terms of money, time
and morale – of going to tribunal.
Mediation also sits comfortably at the beginning of the
dispute resolution process where an informal resolution is How do you embed mediation?
being sought. In essence mediation can be used effectively It’s important to have buy-in from the chief executive, senior
at any stage of a dispute. managers and from trade unions. Mediation needs to be
visible in dispute resolution procedures. If not, people are
We offer restorative mediation to help employees back into likely to reject it on the grounds they don’t want to be
work following a long absence, an appeal or suspension. experimented on. I also think it’s crucial that investigating
Mediation can also help in negotiating an amicable officers and managers chairing appeals understand the
employee exit and avoid the large sums that may be payable potential of mediation.
if a case goes to tribunal.
About The TCM Group (TCM)
Who makes a good mediator? TCM was formed in 2001. Its services include workplace
Whilst I think everyone has an inherent capacity to mediate, mediation, internal mediation scheme design, mediation
workplace mediators do require training to help them training, Conflict MOTs and independent workplace
manage the process effectively. A good mediator must be investigations. Its recent clients include Transport for
able to listen, engage, take views seriously, and recognise London, DWP, American Airlines, Topshop/Topman and BT
that no one’s views are necessarily right or wrong. Retail. For more information visit www.thetcmgroup.co.uk
design and roll-out. Four trade union stewards next stage was to use Acas conciliation and then
at the council were trained to become mediators. Acas arbitration.
Employee communications At East Sussex County Council, contracts of
Employers use a wide variety of means to employment now state that mediation is the
communicate their mediation services. Some preferred method of addressing workplace
may go for a ‘big bang’ approach on launch, disputes. Its grievance and dignity at work
with flyers, posters and roadshows. Piloting policies require managers to offer mediation as a
mediation in the first instance can also help method of resolving a formal dispute before
ensure a smoother roll out of the service. beginning formal investigations. At Derbyshire
Constabulary (see the short case study on page
Building mediation into formal procedures 38) mediation is an option at the second stage of
Employees are likely to feel more comfortable the dispute resolution procedure.
using mediation if it is built into a company’s
formal dispute resolution procedures. Where A holistic approach
employers have done this, mediation is usually Mediators accept that mediation is no panacea. It
offered as an option at the informal stage. One is not suitable in every circumstance. And line
policy we examined stated that mediation is managers should not view mediation as a way of
considered before a minor issue escalates to avoiding difficult conversations with their teams.
formal disciplinary action, and after a first or Mediation is just one element in a holistic
final written warning – depending on the nature approach to dispute management, which also
of the misconduct. Another employer’s grievance includes informal resolution and formal
policy said that following the appeal process, the procedures.
New approach to conflict and the Head of Legal Services. ‘We thought that
having in-house capability would be better than
The impact of conflict at work relying on external mediators,’ explains Green.
In 2006/07, there were 44 formal workplace ‘Cost was a key factor – external mediators can
disputes at East Sussex County Council – and charge as much as £3,000 a day. But we also
there were 59 the following year. The council wanted a service staffed by people with a
estimates that each dispute demanded 32 days of genuine understanding of how business is done
an HR adviser’s time, with a similar within the council and a positive commitment to
commitment required by line managers, legal improving the culture of the council over the
advisers and trade union representatives. long term.’
‘But as well as these more direct costs, conflict at Agreeing investment
work impacts on morale and can result in The initial outlay to train 16 internal mediators
increased employee absence,’ explains Leatham was £25,000. ‘That may sound like a lot, but it’s
Green, the council’s Assistant Director of HR. not a huge amount when you take into
‘When lines of communication collapse at work consideration the budget of a council with near
it can have a negative impact not only on to 17,000 staff,’ says Green. ‘And not when you
working relationships but also on employees’ look at the potential cost savings.’
family lives. Traditional grievance and dignity at
work policies don’t effectively address in a The investment was signed off by the Chief
timely way the underlying issues or seek a Executive and the finances were drawn from the
constructive resolution.’ council’s ‘Invest to Save’ fund. ‘Money is
available from this fund if you can demonstrate
‘For some time I had thought there must be a through a robust business case a return on
better way to handle conflict at work,’ continues investment,’ explains Green. ‘I guaranteed a
Green. ‘Dignity at work investigations nearly return of £100,000 in year one through a
always result in everyone walking away reduction in time to resolve conflict, reduced
unhappy. And similarly, there are generally no costs in absence and back fill of time lost
winners if a formal grievance is instigated. through attending formal investigations.’
Having that kind of bad feeling can’t be healthy
for an organisation or for the individuals Selecting a supplier
involved. The emotional damage can’t be Green contacted a number of specialist suppliers
quantified.’ before selecting Globis (www.globis.co.uk) to
train the council’s in-house mediation team.
Green began considering mediation as a more
‘Their value base fits with what we wanted to
constructive approach to conflict resolution
following a conversation with a local Unison achieve,’ explains Green. ‘And their Managing
branch secretary, Tony Watson. ‘Tony had used Director, Clive Lewis, has an outstanding track
mediation successfully in the past,’ says Green, record and high professional credibility.’
‘and we agreed that we should explore its
possible use at the council.’ About East Sussex County Council
East Sussex County Council is a four-star, excellent
An in-house mediation team rated authority and has 17,000 employees across
The council decided to introduce its own more than 500 locations.
in-house mediation team. The project was It provides a range of local services – from
managed by a multidisciplinary team, including education, social care to children and adults,
Green and Watson, as well as the council’s Head library services and transport, to trading standards,
of HR Strategy, the Head of Personnel Services, registrar services and support for local Councillors
the Head of Workforce Planning and Training – to a population of 700,000.
It proved relatively simple to win union backing Following the first stage of the formal grievance
procedure – which involves an investigation and
for the proposals. ‘Trade union colleagues had
grievance hearing – employees may again be
been part of the idea from its very conception
offered mediation if they are unhappy with the
and we kept them involved throughout the
result. ‘And we’ll offer it again and again
design and roll-out,’ says Green. ‘The trade
following each stage of the procedure in an
union stewards who were trained as mediators effort to find an amicable solution before it goes
were great champions for mediation and Tony to tribunal. In 2008, we had six grievance cases
Watson, our local Unison branch secretary, was ready to go to employment tribunal – only one
strongly supportive of the idea from the outset.’ did,’ says Green. ‘In the vast majority of cases we
Amending contracts of employment can use mediation at some point to find a
resolution. Obviously, the further into the
The council’s contracts of employment and
formal process you are, the more likely
policies on dignity at work, attendance
mediation is simply going to be about
management and grievance have all now been
negotiating a settlement figure.’
amended. ‘There were no fundamental changes
to the processes, but we introduced a new ethos Self-financing service
– a new model for how conflict should be The council’s mediation service is self-financing
approached,’ says Green. and charges internal (and external) users. There
The contracts of employment now state that is no budget for the service so the charges are
mediation is the preferred method of addressing necessary to pay for training and resources to
workplace disputes. All new employees are made keep mediators’ skills up to date.
aware of this and existing employees were sent Managers are charged £800 a day to
communications to this effect. The grievance commission the internal mediation team. They
and dignity at work policies now require are also expected to pay for a suitable venue.
managers to offer mediation as a method of ‘This may seem a lot of money to charge an
resolving a dispute before beginning formal internal client,’ says Green. ‘But the service isn’t
investigations. about letting line managers abdicate their
sit and listen and allow the other party to air their legally binding but we do see it as morally
views fully, and ensure they listen to what is said. binding,’ says Green. Any agreement involving
This allows each party to get their feelings off an employee exit will be confirmed in a
their chest without having to defend their compromise agreement.
comments,’ explains Green. ‘You don’t get this
opportunity to talk about how you feel at a Follow-up sessions
formal grievance hearing or at tribunal, and often Review meetings are held after six weeks, three
this is what allows a settlement to be achieved.’ months and six months to check that both parties
are sticking to the agreement (except where
‘We encourage each party to speak for
mediation has involved an exit). Either party can
themselves,’ continues Green. ‘However, they
contact the mediators at any point between these
may elect a representative to speak on their
dates to discuss any issues that arise.
behalf. Sometimes the relationship between the
two parties has broken down to such an extent ‘It’s unlikely that two people who have been
that they can’t talk to each other directly.’ involved in a dispute will ever be the best of
friends and it would be naïve to think problems
Talking to parties individually
won’t arise again,’ says Green. ‘When it’s an
Following the opening statements, the lead
issue between an employee and their manager,
mediator may consider it necessary to talk to one
we expect the manager to be flexible. Our
or more of the individuals in private. ‘The
position is that managers are responsible for
mediator is in charge and must be trusted by
their employees’ welfare. There is a greater
both parties to manage the process,’ says Green.
weight on them to comply with the agreement
‘For example, it may be necessary to remind a
and take the lead in rebuilding the relationship.’
solicitor present that this is not a court of law –
the aim is to reach an agreement that is suitable Calling on external expertise
to both parties and not debate the finer points of
Nine out of ten cases where mediation is
a policy or a point of law.’
requested are now handled in-house. But external
‘Some people get a lot just from unloading their mediators are used if the demands of a case go
feelings on the mediator at the break-out beyond the experience level of the internal
sessions,’ continues Green. mediators. Moreover, there are some long-term
disputes at the council pending employment
Reaching agreement
tribunal. ‘In these cases, many of our internal
If an agreement is reached, it is signed by both mediators – particularly from the HR and trade
parties and witnessed by the mediator. ‘It’s not union side – have already had some involvement
in the formal grievance process and therefore
Supporting mediators can’t mediate,’ explains Green.
involving mediators is that HR has more time to than that we have successfully introduced a new
focus on strategy.’ culture around handling workplace disputes –
one that really seeks to address the underlying
Gaining wider recognition issues and find workable solutions.’
The mediation service is gaining wider recognition
both within and outside the council. The team ‘Perhaps most gratifying is the fact that the
now mediates on commercial disputes for the mediation project – and in particular having
council. ‘We have been able to resolve commercial union stewards acting as mediators – has
disputes over contracts worth thousands of completely changed our relationship with the
pounds,’ says Green. The team is also now used trade unions when it comes to conflict at work,’
by three other local public sector organisations continues Green. ‘Before, where formal
and has received interest from private sector grievances were being pursued, both parties
employers. And the council is a finalist in the tended to take an adversarial position. Now, we
CIPD People Management Awards 2009 for its work together through mediation to seek a
introduction of workplace mediation. mutually acceptable resolution. This has to be
one of the biggest transformations we’ve
Working with the unions brought about with trade unions and
Green believes that the mediation service is the management working in a true and meaningful
best HR initiative the council has ever rolled out: partnership. We haven’t achieved the same level
‘The cost savings speak for themselves. But more of union buy-in for any other initiative.’
In the introduction to its dispute resolution complaint relates to the line manager the form
policy, Derbyshire Constabulary recognises the should be passed to the next manager up.
importance of maintaining good staff relations
The manager involved has 21 calendar days
and promoting fairness at work. It also
establishes its belief that ‘workplace disputes from the date the grievance is received to
provide opportunities for the organisation to attempt to resolve the issue. Support and advice
learn and improve. It is essential to the running is available from the local HR manager, who will
of an effective police service that workplace also monitor progress.
disputes are resolved effectively, efficiently and Parties meet to discuss resolution
in a timely manner.’ The manager should meet separately with the
The constabulary has moved away from an aggrieved party and any other parties involved
approach based on investigating claims towards within seven days to discuss the grievance. If any
one of seeking to understand the different party is absent from work, managers may
viewpoints of the parties involved and finding a conduct home welfare visits to discuss the issue.
mutually agreeable solution. The purpose of its A meeting of all parties is then arranged. The
policy is ‘to provide a channel for staff to raise constabulary recognises that this may be difficult
issues of concern and to access methods of and a number of separate meetings may be
resolution that are constructive and fair’. required initially. However, it believes that ‘it is
necessary for the parties to meet in order to restore
Informal resolution
a working relationship’. At the meeting the stage
Employees are encouraged to raise any issues manager should review the key points and suggest
informally with their line manager, an HR a resolution, which is confirmed in writing.
manager or a staff association representative in
the first instance. Informal resolutions may Joint problem-solving and mediation
involve a line manager meeting each party
In the event that the issue remains unresolved
separately or together to discuss the matter and
after 21 days, the employee must update the
seek a solution. In its policy, the constabulary
dispute resolution form and send it to the local
gives the following examples of the form a
HR manager. There are two options at this stage:
resolution at this stage may take:
joint problem-solving or mediation. If the first
● Clarification of a misunderstanding option taken is unsuccessful, the other can be
tried – providing it can be completed within the
● Exchange and acceptance of differing
21 days given to resolve an issue at this stage.
perspectives/feelings
● Agreement to disagree Joint problem-solving
Joint problem-solving is considered to be best
● Agreement to provide feedback to someone
used when the dispute relates to procedural
on their behaviour
issues or terms and conditions, and less effective
● Acceptance of an explanation or apology when the issue is about working relationships. It
● Agreement to implement a development plan involves all parties meeting to discuss the issue in
or action plan
About Derbyshire Constabulary
● Agreement to modify a practice or behaviour
Derbyshire Constabulary is committed to reducing
and investigating crime, protecting people and
Raising a formal grievance
promoting law and order across the county of
If the issue is not dealt with successfully by Derbyshire. It serves a region of over 1,000 square
informal means, employees can raise a formal miles, with a population approaching one million.
grievance. To do so, the aggrieved person must Derbyshire encompasses the rural areas of the
complete a dispute resolution form. This is High Peak and Derbyshire Dales, as well as old
handed to the appropriate line manager, who mining communities, modern towns and business
can offer assistance in filling it out. If the centres.
a controlled environment. The session is chaired The constabulary established that any issues
by a trained mediator who acts as an impartial disclosed during mediation should remain
facilitator. All those present – the disputants, confidential and cannot be used in other
staff association representatives and the proceedings, such as an employment tribunal.
impartial facilitator – can suggest solutions. This is key to establishing ‘a safe environment for
open discussion and resolution of the dispute’.
Mediation
The second option, mediation, is carried out by Mediation can only proceed if all parties agree to
an employee trained and nationally accredited in participate. If any party does not agree, joint
mediation practice. The constabulary has an problem-solving must be attempted.
internal pool of mediators, which includes
employees drawn from across the whole county. Appeals panel
This helps ensure impartiality as mediators can If mediation and joint problem-solving are
be selected from areas geographically remote to unsuccessful, the issue is put before an appeals
the dispute. The mediators also represent a panel. This includes HR and independent staff
diverse cross-section of the constabulary in representatives. The aim of the panel is to:
terms of race, gender and ethnicity.
● establish whether the procedure has been
Unlike the joint problem-solving process, staff followed correctly, if this is disputed
association representatives cannot attend
mediation sessions because ‘mediation is about ● agree a framework for addressing the
dealing directly with the parties involved so that outstanding grievance issues between the
they can take ownership of their own solutions’. parties
They can, however, provide support to those ● confirm the conclusions/recommendations of
involved. the panel with each party.
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