Professional Documents
Culture Documents
PROFESSIONAL
INSIGHTS
Dennis Hunt
IFC
THOROGOOD
PROFESSIONAL
INSIGHTS
DISMISSAL AND
GRIEVANCE PROCEDURES
FRAMING AND OPERATING PROCEDURES
TO MEET CURRENT RULES
Dennis D Hunt
Thorogood Publishing Ltd
Dennis Hunt began working in industrial relations and employment law in the
motor industry in the 1970’s. During this time he was heavily involved in trade
union negotiations and strike resolution. His experiences during this time lead
him to write his first two books, Common Sense Industrial Relations in 1976 and
Employment and Dismissal Without Fear in 1978. Both books were published
by David and Charles.
In 1977 Dennis launched his first business IRPC (Industrial Relations and Personnel
Consultants). This business concentrated on providing employment law and
practical personnel advice and assistance to the smaller business. The business
ultimately grew to advise over 500 small businesses throughout the United
Kingdom and employed over 200 employees. The business is now a part of Croner
Consulting Ltd. In 1980 Dennis was awarded the Coventry City Chamber of
Commerce Young Business of the year award.
Introduction..................................................................................................1
1 THE LEGISLATION 4
A brief history of unfair dismissal legislation and
employment tribunals .................................................................................5
Summary of changes introduced by the Employment Act 2002 ............7
The standard three step disciplinary disputes procedure.......................8
The modified disciplinary procedure.........................................................8
Default judgments........................................................................................9
Case management .......................................................................................9
ACAS conciliation .....................................................................................10
Directions hearings ...................................................................................10
Costs............................................................................................................11
2 CONTRACTS OF EMPLOYMENT 13
Contracts of employment: an introduction.............................................14
The tests of employment ..........................................................................15
Forming the contract ................................................................................17
Formalities..................................................................................................19
Contracts: the four elements ....................................................................19
The Employment Rights Act S1 –
’written statement of particulars’ ............................................................22
Changing the terms of a contract of employment ................................23
Summary.....................................................................................................24
3 DISCIPLINARY RULES 25
Disciplinary rules: an introduction ..........................................................26
Drafting the rules.......................................................................................27
Health and safety rules..............................................................................29
Communicating the disciplinary rules ....................................................30
4 DISCIPLINARY PROCEDURES 32
Disciplinary procedures and the law.......................................................33
Modified disciplinary procedures and gross misconduct.....................35
The ACAS guide to disciplinary procedures ..........................................37
Special situations ......................................................................................39
Summary ....................................................................................................40
6 DISCIPLINARY SANCTIONS 57
Disciplinary sanctions and warnings ......................................................58
Poor performance issues – capability......................................................60
Sickness, lateness and absence ................................................................60
Misconduct and gross misconduct ..........................................................63
7 ENDING EMPLOYMENT 66
How employment can end ........................................................................67
Resignation.................................................................................................67
Termination by mutual agreement...........................................................69
Compromise agreements..........................................................................70
Requirements of a compromise agreement............................................71
Independence of adviser...........................................................................72
The conclusion of a fixed term contract..................................................73
8 GRIEVANCES 94
Grievances: an introduction .....................................................................95
The standard ‘three step’ grievance procedure ....................................96
Definition of a grievance...........................................................................97
The ‘modified’ two step grievance procedure ........................................98
Overlapping disputes ..............................................................................101
Grievance procedures and their impact on employment tribunal
applications ..............................................................................................102
9 APPEALS 104
The right of appeal ..................................................................................105
APPENDICES 109
Appendix I Example of disciplinary rules and procedure...............110
Appendix II Example of a grievance procedure ................................116
Appendix III Example of a complaints procedure dealing
with harassment or bullying...........................................119
This report looks at the all important requirements for businesses of all sizes to
operate effective dismissal, disciplinary and grievance procedures which meet
the requirements of the law. In particular, the report covers all of the require-
ments of the new ‘Disputes Resolution Procedures’ that came into effect 1st
October 2004. These new rules changed the law on unfair dismissal substan-
tially, by ensuring that no major decisions can be fairly taken when disciplining
an employee, or dealing with any grievance that they may have without certain
basic procedural steps having been followed. The new rules also impact on the
admissibility of tribunal claims by reference to these same procedural steps.
One amazing statistic identified by the Employment Tribunals Task Force set
up in October 2001, charged with reviewing the existing tribunal system, showed
that 64% of the applications to employment tribunals were lodged without the
employee and employer having first met to discuss the problem and attempting
to resolve it between themselves.
In 2001 the government estimated the average cost of defending a claim at around
£2,000, and the cost of replacing a member of staff in excess of £3,000 – and
these figures do not include management costs associated with defending a claim,
and the possible damage to workplace relations that may have arisen. Fewer
than 50% of claimants claim unfair dismissal, the bulk of the remainder is made
up of claims of discrimination, improper pay deductions and other breach of
contract claims.
stipulate that the chairman must always be an experienced lawyer whose training
and background hardly encourages informality when dealing with disputes.
Where the new statutory dismissal and disciplinary rules apply, employers will
be expected to follow defined steps whenever disciplinary or dismissal action
is being contemplated, or when dealing with any grievances raised formally by
their employees. The definition of ‘dismissal’ is much wider than hitherto, and
includes redundancy, expiry of fixed term contracts and capability dismissals.
The employee is expected to cooperate with the operation of these procedures,
and is also required to follow certain defined steps themselves, before presenting
a claim to an Employment Tribunal. A failure to follow, and comply with the
procedures, when a dismissal takes place, will result in any subsequent
dismissal being ruled automatically unfair.
Similarly, where the new statutory grievance procedures apply, the employee
will first be required to put any grievance to their employer, and the employer
will be expected to invite the employee to a meeting to discuss the grievance,
and provide for an appeal against any resultant decision. A failure by an employee
to follow the prescribed procedure will, in most circumstance, bar them from
bringing a tribunal claim relating to the grievance.
Compensation for any successful tribunal claim, in relation to which one of the
new statutory procedures applies, can be reduced, or increased by between 10
and 50%, to reflect any failure on the part of the employer, or employee, to comply
with any aspect of the new statutory procedures.
Through the operation of the new regulations, the government hope and expect
that the number of applications to Employment Tribunal will fall substantially,
leading to reduced pressure on the system and, as a result, an improvement in
the efficiency and effectiveness of the service in general. Only time will tell if
this laudable aim will be realized.
Dennis Hunt
2005
Chapter 1
The Legislation
A brief history of unfair dismissal legislation
and employment tribunals....................................................................5
Costs......................................................................................................11
Chapter 1
The Legislation
In 1978 unfair dismissal law was consolidated with the 1963 Contracts of Employ-
ment Act and the 1965 Redundancy Payments Act into the comprehensive
Employment Protection (Consolidation) Act 1978 which was itself repealed and
replaced with effect from 22nd August 1996 by the 1996 Consolidation Acts.
Until 1971 the only modern UK statutes dealing with individual employment rights
were the 1963 Contracts of Employment Act (which gave employees the right
to written particulars of terms and conditions of employment) and the 1965 Redun-
dancy Payments Act.
At the time of their creation Industrial Tribunals handled disputes under the Indus-
trial Training Act. In 1965 their jurisdiction was extended to include disputes
that arose from the Redundancy Payments Act 1965 and, following the Indus-
trial Relations Act 1971, to unfair dismissal claims. Since then the jurisdiction
of Employment Tribunals has been progressively extended to cover a wide range
of employment related issues. Today Employment Tribunals have jurisdiction
to hear claims under a large number of statutory provisions. These currently
total over 80.
sion reported in 1968 and amongst more general recommendations was one
for a law of unfair dismissal.
Barbara Castle, the Minister responsible in the Wilson government for employ-
ment matters, produced a paper (In place of strife) proposing legislation based
on the Donovan report. The unions would not accept this and at the 1970 general
election the Labour government was defeated.
One of the first acts of the incoming Conservative government under Edward
Heath was to pass the Industrial Relations Act 1971. This was mainly concerned
with general industrial relations matters, derived from the 1968 Conservative
Party document, Fair deal at work, but also introduced unfair dismissal along
the lines recommended by the Donovan Commission.
The unions would not accept the Industrial Relations Act 1971, however, they
were generally in favour of the unfair dismissal sections of the Act. The matter
came to a head with the 1974 miners’ strike when Edward Heath called a general
election and lost.
The new (1974) Labour government repealed the Industrial Relations Act (IRA)
in its entirety by introducing the Trade Union and Labour Relations Act 1974.
However, they re-enacted the unfair dismissal elements of the IRA 1971, with
a few minor amendments.
In 1978 unfair dismissal law was consolidated with the 1963 Contracts of Employ-
ment Act and the 1965 Redundancy Payments Act into the comprehensive
Employment Protection (Consolidation) Act 1978 which was itself repealed and
replaced by the 1996 Consolidation Act.
The Labour government fell in 1979 after the ‘winter of discontent’ in which indus-
trial action spilled over from the workplace and became too violent for the public
to accept.
The next (Conservative) government, under Mrs Thatcher, made many changes
to labour and industrial relations law generally but left the law of unfair dismissal
pretty well alone, to be developed by the tribunals and the courts.
The Employment Act 2002 was introduced by the Labour government to bring
statutory dispute resolution procedures into being that must be followed by both
employer and employee alike, in order to reduce the high volume of cases coming
before the Employment Tribunals
‘Fair’ includes the fact that a Disputes Procedure was followed that met the specific
‘Standard’ (three-step) or ‘Modified’ requirements of the Disputes Resolution
Regulations. Where the requisite Disputes Procedure has not been followed,
or worse, no Disputes Procedure exists, or is inadequate, the respondent risks
automatically losing the case with the award of compensation being made against
them being increased by between 10% and 50%.
1. The employer sets down in writing the nature of the employee’s conduct,
capability or other circumstances that may result in dismissal, or other
disciplinary action, and sends a copy of this statement to the employee.
The employer must inform the employee of the basis for his/her
complaint.
Note: Employees are entitled to be accompanied at any formal stage of the proce-
dure by a companion or trade union representative of their choice.
1. Set down in writing the nature of the alleged misconduct that has led
to the dismissal, the evidence for this decision, and the right to appeal
against the decision, and send a copy of this to the employee.
The modified procedure may be used only when the following conditions apply:
• The dismissal took place at the time the employer became aware of
the gross misconduct (or immediately thereafter).
Default judgments
The revised Employment Tribunal Constitution and Rules of Procedure 2004 intro-
duced a new system of default judgments under which a tribunal chairman may,
in certain circumstances, determine a case without a hearing if he or she considers
it appropriate to do so. Such a judgment may decide liability alone, or liability
and remedy.
Case management
The powers of case management given to chairmen under the new rules of proce-
dure are considerable. These powers are an integral part of the intention to speed
up proceedings wherever possible.
Chairmen now have the power to hold ‘case management discussions.’ Such
discussions are interim hearings intended to deal with matters of procedure and
management of the proceedings. They can be held by a chairman on his or her
own, with the claimant and the respondent invited to take part. They may be
held over the telephone or in person. If either party fails to carry out or comply
with any order that results from any such discussion, their claim or response
may be struck out and they can become liable to pay some, or all of the other
party’s costs.
The new rules provide that notwithstanding the ‘preliminary or interim’ nature
of a PHR, a case may be struck out at this stage where in the chairman’s view
a claim or response is scandalous, vexatious, or has no real prospect of success;
or where the conduct of the case has been scandalous, unreasonable or vexatious.
ACAS conciliation
The Employment Tribunals (Constitution and Rules of Procedure) Regulations
2004 which came into force of 1st October 2004 radically changed the rules
governing the period of time during which ACAS managed conciliation, can
take place. Previously ACAS conciliation was open-ended in time. The new rules
introduced fixed defined periods for conciliation, during these periods of concil-
iation, no hearing date will be set, or notified to the parties. Once these periods
have elapsed ACAS will not become involved further, as their ‘duty’ to concil-
iate will have been fulfilled. They will still have the ‘power’ to conciliate, but are
expected to exercise this power with considerable restraint.
Short conciliation periods of seven weeks, starting with the date the claim is
sent to the respondents, will apply to breach of contracts claims and other claims
brought under the Employment Rights Act 1996 – including unlawful deduc-
tions from wages, right to guarantee payments, right to time off for public duties
and a failure to pay any due redundancy pay. This, together with a variety of
claims brought under the Trades Union and Labour Relations (Consolidation)
Act 1992, and claims under the Transfer of Undertakings (Protection of Employ-
ment) Regulations (TUPE), regarding a failure to pay compensation, following
a failure to consult as required by the TUPE Regulations.
Directions hearings
As a result of the Employment Act 2002, directions hearings will become an
increasing feature of the Employment Tribunal case management process. A
tribunal may at any time, on the application of a party, or of its own motion,
give such directions on any matter arising in connection with the proceedings
as it believes appropriate.
Directions may include any requirement relating to evidence, including the provi-
sion and exchange of witness statements, the provision of further particulars,
and the provision of written answers to questions put to either party by the
tribunal. The tribunal may also, on the application of a party or on its own motion,
require the attendance of any person, either to give evidence, or to produce
documents, or both and may determine both the time and place at which the
person is required to attend. A failure to comply without reasonable excuse shall
lead on summary conviction to a fine. The tribunal also has the power to make
an order in respect of costs, and to strike out the whole or part of the originating
application, or the notice of appearance and, where appropriate, direct that a
respondent be debarred from defending the case altogether.
Costs
One major change introduced by the Employment Protection Act 2002 relates
to the power of tribunals to make costs orders. This increased power provides
additional ‘bite’ to a tribunal’s powers, and is intended to force the parties to
ensure that they comply with all tribunal’s orders, and do all in their power to
ensure that delays and adjournments are kept to a minimum, thus eliminating
unnecessary delays to tribunal proceedings.
The new powers enable tribunals to make costs awards of up to £10,000 where,
in the tribunal’s opinion, a party has behaved vexatiously, abusively, disruptively
or otherwise unreasonably in bringing or conducting the proceedings, or the
tribunal find that the bringing or conducting of the proceedings by a party has
been misconceived. In such circumstances the tribunal may make an award of
costs against the party. Such an award can include the costs of preparation time
in preparing for the hearing, for non legally represented parties, and ‘wasted’
costs.
‘Wasted’ costs are costs incurred by a party, such as travel or overnight stay
expenses, that have been incurred by them – but which may be wasted – as a
result of the conduct of the other party.
Whilst the maximum costs that can be awarded by a tribunal is £10,000, this
need not necessarily be the maximum that results. The tribunal rules set out three
ways in which a costs order against a party can be made. Firstly, the tribunal
may specify the sums payable, where that sum is no greater than £10,000.
Secondly, the parties may agree the sum payable between themselves. Thirdly,
the tribunal may order the costs to be determined by way of a detailed assess-
ment in a County Court. The rules make it clear that if the amount is set using
the two latter methods, the amount may well exceed the £10,000 maximum.
Chapter 2
Contracts of employment
Contracts of employment: an introduction.......................................14
Formalities............................................................................................19
Summary ..............................................................................................24
Chapter 2
Contracts of employment
The ERA 1998 Section (s)230 states that an employee is ’…an individual who has
entered into, or works under, a contract of employment…’
Often employers and employees alike will state that they have either not issued,
or not received a contract of employment. What they really means is that they
have not issued the Statement of Terms and Particulars required under Section
1 of the Employment Act 1996.
An employer can be a:
• Sole trader
• Partnership
• Company
• Unincorporated association
• Private individual.
• Permanent staff
• Part-time staff
• Casual employees
Control test
This is the oldest test and is drawn from master/servant rules ‘from the servant
is due obedience and respect – from the master protection and good treatment’
Linland v Stephens 1801.
The fundamental question to be asked here is ‘Does the employer direct and
control?’ If the answer is ‘Yes’ then the person is an employee.
Organization test
Is the person part and parcel of the organization? Stevenson Jordan and Harrison
v McDonald and Evans 1952.
Indicia test
1. Masters’ (employers’) powers of selection
This is a pragmatic approach which takes all factors into account, e.g. degree
of control; obligation to give work and obligation to accept; provision of tools
and equipment; responsibility for tax and NHI payments; freedom to do other
work; holiday entitlement; entitlement to notice; expenses; financial risk;
duration of engagement etc.
Because of this the actual content of all contracts will be fluid. Jobs are never
static; they are constantly changing with the passage of time as businesses and
people grow, change and develop. Documentation defining the job, and hence
the contract, need to be reviewed from time to time to reflect any major changes
that have occurred.
The contract can be oral, written, or deduced by conduct, but to meet the require-
ments of employment law they require evidence by way of a Statement of Written
Terms and Particulars of Employment – Employment Rights Act 1996 Section
1.
• Apprentices
• Merchant seamen/women
The only legal requirement is that the ‘S1 Statement’ be in writing. However,
the ‘S1 Statement’ is not the contract, simply evidence of its main terms.
Pre-contract terms
These terms set out the requirements that the candidate for a position must meet
if they are to proceed to the full contract. Such requirements as the provision
of references, passing a medical examination, sight of qualifications, driving
licence etc, are all common requirements set out as pre acceptance clauses in
offer letters. The offer letter often uses the words ‘subject to…………………’ these
requirements being met, before the offer of employment moves to a full contract.
Contract terms
The actual contract terms will consist of four main elements:
1. The express terms set out in writing – the written particulars and any
other matter that the employer feels is relevant to the job, and important
to be set out in the main terms of contract.
2. The implied terms (see below) comprise those terms that are obvious
and would be present in any intent by any parties intending to be bound
in a legal relationship. Such matters as the expectation of loyalty,
integrity, faithfulness etc.
4. One final element can also be included called ‘Custom and Practice
terms. More on this later.
Post-contract terms
These terms are known as ‘restrictive covenants’ – are those which bind the
employee after the employment has ended. These are often very specific both
in time – the period in which they will continue to apply after employment has
ended – and in the protection afforded to the employer. To be validated by the
courts any restrictive covenant needs to be ‘reasonable’ and only seek to protect
that which the employer owns, such as internal business information, client lists
and trade secrets of which the employee would have had no knowledge without
working for the employer. Employers must exercise great care when drafting
restrictive covenants to ensure that they do not become ‘restraints of trade’ and
therefore unenforceable in law. A restraint of trade is defined as a requirement
drawn so tightly that its operation prevents the ex-employee from earning their
living, by selling and exercising their skills and abilities.
Formalities
For any contract of employment to come in being there must be an offer and
unconditional acceptance of work.
Express terms
These can include:
The written statement must accurately represent the agreement entered into
between the parties. Express terms ensure that this happens.
changes to the contract terms will require consultation and prior agreement
before implementation.
It is important that the terms of the contract accurately reflect the needs of the
business. It is recommended that before drawing up a contract, those matters
which are fundamental to the operation of the business be listed. What are the
key aspects of the job and the business?
Well written contract terms reflect the nature of the business. Like buying an
‘off the peg’ suit it can be a serious and expensive mistake to simply copy the
terms and conditions of another business and apply them to your own business,
only to find out later at an Employment Tribunal that they do not fit.
Implied terms
Implied terms are prevalent through Employment and Contract Law and apply
to all contracts irrespective of whether they are included as express terms or
not. These rights do not require setting out in writing within the contract as
they apply to all employed persons by force of ‘case law’ i.e. ‘law’ developed by
the workings of the courts and the decisions they reach.
• To provide work.
• To protect confidentiality.
Statutory terms
These are terms imposed by legislation – the ‘third party’ to the contract. They
are the minimum terms that must be applied to all employees irrespective of
whether they are stated in the written particulars or not. For example, the entitle-
ment to 20 days’ holiday a year for full-time employees, or pro- rated for part-time
employees. Employers are free to offer terms in excess of the minimum, but must
apply the minimum to all employees irrespective of any other specific terms agreed
between them.
The only bodies that can interfere with the terms of a contract freely entered
into by an employer and an employee are:
1. The government – through legislation; over the last 30 years many rights
have been included into the contractual relationship of employer and
employee through legislation.
Custom and practice covers all the peripheral aspects of the job which can change
over time: working arrangements not committed to paper; understandings
entered into within work groups and between supervised and supervisors etc.
The minutiae of working life that are never, in fact can never, be fully recorded
or included in any documentation.
• If no particulars apply under any heading then that fact should be stated.
• The statement may refer the employee to other documents where the
specific information is held.
Note: The S1 statement is not the contract, merely evidence of its terms.
As the contract is entered into by mutual agreement, then any change to the
agreed terms must also be mutually agreed. Where agreement cannot be reached
between the parties the employer has the right, as employees do, to end the
contract if there is no alternative course of action open to them. They must,
however, be able to demonstrate that they have first explored and exhausted
all possible alternative courses of action before proceeding to go about ending
the contract, in accordance with its terms, regarding notice entitlement, and
the requirements of statute.
Summary
The contract of employment is the starting place when considering any aspect
of employment. By its very nature it is the hub around which all other aspects
of employment revolve. When any dispute arises the first place to look when
seeking to resolve any issue that may have arisen is the terms of the contract
of employment. Questions must be asked such as:
The rules, disciplinary and grievance procedures are an integral part of the
contract of employment and the next chapter explains why.
Chapter 3
Disciplinary rules
Disciplinary rules: an introduction ....................................................26
A failure to follow any part of the Code does not, in itself, make a person or
organization liable to proceedings. However, Employment Tribunals will take
the code into account when considering relevant cases. Further, a failure to follow
the statutory disciplinary and grievance procedures where they apply may have
a number of legal implications which are described in the Code. As such, the
Code is well worth obtaining, reading and retaining for reference purposes. In
the main it is written in plain English and is easy to follow.
Rules should not only set out the boundaries of behaviour and performance
required of employees, but they should define the category within which each
rule falls, indicating the severity with which any breach of them will be treated.
Actions which are unacceptable, but not fundamental breaches of contract should
be indicated. Similarly, actions which would constitute a repudiation of contract
need to be clearly set out. What could be seen as gross misconduct in certain
organizations might merely be misconduct in others.
Organizations should aim for clarity and simplicity when communicating the
expected standards of behaviour and performance to their employees. This can
make the difference between winning and losing at an employment tribunal
hearing.
It is unlikely that any set of rules will cover all possible disciplinary issues; each
organization will have its own particular needs. But rules usually cover:
• Poor timekeeping
• Unauthorised absence
• Gross Misconduct
Rules should be specific, clear and set out in writing. They also need to be readily
available to all employees. Management should do all that they can to ensure
that every employee knows and understands the rules, including those
employees where English is not their first language, or whose reading ability
is low. The aim when drafting rules should be to write them at a ‘reading age’
level of 12. This is the reading age at which the popular tabloid newspapers are
written.
• Fighting or drunkenness
• Illegal drug taking and alcohol use during working hours – (or outside
if driving or flying is involved)
• Theft or fraud
• Serious insubordination
• Serious negligence
When drafting rules, employers should start by asking what is important to their
business. The standard terms covered by the above list may not be adequate
or appropriate to meet the needs of the business. Employers must ensure that
their rules are relevant to their business, and concentrate the minds of their
employees onto those things which are important to the success of their business,
or the attainment of the businesses’ defined objectives. Businesses do not operate
in a vacuum. They have specific purposes and are directed to meet specific needs
and market places. The rules, as guidelines for employees, should define and
emphasise these needs and objectives. It is all very well drafting mission state-
ments, but unless the rules, employee guidance systems and training programmes
are clearly directed to achieving the mission of the business, then the mission
statement risks being just words without a link to the way in which the business
works on a day-to-day basis. The rules will give a very good guide to the business
ethos and philosophy.
An employer who fails to have clear defined rules covering every aspect of health
and safety drawn up within their business, is likely to be found to have acted
negligently in the event of a serious accident or incident. A breach of the health
and safety laws is a criminal act which can lead to:
• Prohibition Notices which stop all work in the area concerned until
certain specific requirements have been met;
• Imprisonment for directors who have failed in their duties and whose
failure has led to serious incidents or accidents arising.
As I write, five executives – three from Railtrack, which later became Network
Rail and two from the engineering company Balfour Beatty – are on trial for
the manslaughter of four passengers who died in the 150mph crash on
October 17, 2000 (The Hatfield Rail Disaster). These executives also face further
charges brought under the Health and Safety at Work Act.
Health and safety rules need linking to the general rules so that a failure to observe
them will lead automatically to their enforcement through the operation of the
businesses’ normal disciplinary procedure. All too often in my experience, this
essential linking is missing. I have found many instances where the health and
safety rules appear to have been developed in a vacuum and not linked across
to become an integral part of the organization’s normal standard operating rules
and procedures.
During the induction programme for new employees every opportunity should
be taken to ensure that the new employee thoroughly understands not only what
is in the rules, but the thinking and reasoning behind them. Particular atten-
tion should be given to safety rules, with demonstrations being given where
safety clothing and other safety equipment is to be worn or used. Employees
must appreciate that the use of such safety clothing or equipment is not an option,
but an essential feature of their work within the business. At the conclusion of
the induction programme, employees should be required to sign to state that
they have read, (or have had read to them) the rules that apply to them, and
more importantly that they understand the rules and the reasoning behind them.
Chapter 4
Disciplinary procedures
Disciplinary procedures and the law.................................................33
Summary .............................................................................................40
Chapter 4
Disciplinary procedures
Research undertaken by the DTI in 1998 showed that over 60% of Employment
Tribunal claims were lodged before any discussion had taken place between the
employer and the employee. The government, concerned to see that litigation
via an Employment Tribunal was not seen as the first option for resolving work
place problems, decided to introduce statutory dismissal, disciplinary and griev-
ance procedures (DDPs) and GPs (see Chapter 8) – which employers and
employees alike would be required to follow.
The Employment Act 2002 lays down the minimum requirements for Discipli-
nary Procedures which under the Dispute Resolution Regulations are
incorporated in every employment contract with effect from 1st October 2004,
irrespective of the size of the employing organization. The regulations lay down
as a minimum a ‘three step’ disciplinary dismissal procedure (DDP), or a
‘two step’ modified procedure. The ‘three step procedure which applies to
standard disciplinary action and any resultant dismissals is:
Although employers will be obliged to follow the standard DDP when handling
both conduct and capability issues, they should not confuse the two. An employee
called to a meeting to discuss a performance or capability issue should not be
made to feel that they are undergoing a ‘disciplinary’ process. Rather it should
be emphasised that the purpose of the meeting is to discuss whether any action
on their part, or the part of their employer could lead to a resolution of the
‘capability’ issue under discussion. It is good industrial relations practice to distin-
guish between capability and conduct.
Employers must note that the DDPs are intended to provide minimum standards
for all employers. While it is clear that a failure to follow the minimum proce-
dure will lead to automatic sanctions taking place against the employer, it does
not follow that an adherence to them will lead automatically to a finding of a
‘fair’ dismissal. As always, the facts of a case backed up by relevant case law
will determine if the dismissal was reasonable i.e. fair, or not. However, if the
new DDP is followed it will considerably reduce the likelihood that an employer
will suffer an unfair dismissal on the grounds of a procedural fault. It should
be borne in mind that in any unfair dismissal claim, the tribunal will always
consider whether there were any steps the employer could ‘reasonably’ have
taken, in addition to the minimum requirements, when carrying out the
dismissal. If the tribunal decides that there were additional steps that a reason-
able employer would have taken when dealing with the type of issue before them,
then the door is still open to them to make a finding of unfair dismissal.
It is worth bearing in mind at this point that the majority of unfair dismissal
decisions found against employing organizations over the years have been on
the grounds of ‘procedural fault’, rather than the fact that the employer did not
have good grounds for dismissing the employee concerned.
• The dismissal occurred at the time that the employer became aware
of the conduct, or immediately thereafter;
The effect of this is that the modified DDP will apply in only a very small number
of gross misconduct dismissals.
In the small number of instances where the modified DDP might apply, the Regula-
tions state that the employer must:
• What the basis was for thinking at the time of the dismissal that
the employee was guilty of the alleged misconduct; and
For the modified Two Step procedure to apply, the employee will have to have
been dismissed for gross misconduct before the procedure can be initiated.
The first step in the procedure will consist of an explanation by the employer
of why the dismissal took place. The employer must set out in writing the basis
for thinking that the employee was guilty of the misconduct in question – bearing
in mind that the employer may not, in these circumstances, have carried out a
full investigation into the facts surrounding the matter before reaching the decision
to dismiss.
The second step deals with the appeal process and the Regulations state that:
• If the employee informs the employer of his or her wish to appeal, the
employer must invite the employee to attend a meeting;
• After the appeal meeting the employer must inform the employee of
the final decision.
When should employers use the modified Two Step procedure? It is rare for an
Employment Tribunal to find a misconduct dismissal fair where there has not
been an investigation into the employee’s alleged behaviour that did not first
include the opportunity for the employee concerned to put his or her side of
the matter, and to challenge all evidence or any witnesses against them.
The introduction of the Two Step procedure into the Regulations has the poten-
tial to confuse employers. Best practice would advise that no dismissal takes
place without the employee first being given every opportunity to present their
side of the case. If the issue is so serious as to indicate the appropriateness of
instant dismissal, then the employer would be well advised to first instantly
suspend the employee on full pay and benefits (unless the contract of employ-
ment allows otherwise). To in effect make time to consider the matter in a calm
and logical manner, and not be pressurised into making hasty and possibly ill
informed decisions that could prove expensive at a later date. To do otherwise
is to risk a finding of unfair dismissal.
The opportunity to appeal against dismissal allowed for in the modified proce-
dure would allow the employee the chance to put their side of the matter – but
only if the employee exercised the right of appeal and did not proceed directly
to tribunal.
• Be in writing;
• Be non-discriminatory;
• Define and say what levels of management have the authority to take
disciplinary action;
• Ensure that employees are given an explanation for any sanction; and
• When giving a warning, tell the employee why and how they need to
change, the consequences of failing to improve, and that they have a
right of appeal.
• If dismissing an employee tell them why, when their contract will end,
and that they can appeal.
Special situations
Arrangements may be necessary within disciplinary procedures, depending on
the nature of work and work pattern undertaken:
Summary
The purpose of any disciplinary procedure should be to enable the employer
to bring to the attention of an employee any alleged breach of their contract of
employment, in order that, wherever possible, it may be rectified. Their
purpose is not the dismissal of the employee concerned. The true purpose of
any disciplinary procedure is to provide a mechanism whereby breaches of
contract can be discussed between an employer and employee, in an orderly,
civilised and constructive manner, so that the breach of contract complained
of, can be identified, discussed and remedied.
cases the specific issues that the party concerned believes need attending to are
drawn to the attention of the other in a structured and formalised way.
4. First written warning setting out the actual breach of contract and
warning being given to the employee with regard to their future
conduct.
5. Final written warning clearly stating that any further breach of contract
will lead to the contract of employment being terminated.
In certain instances the actions of the offending party can be so ‘gross’, so outra-
geous, as to demonstrate the intention of that party to be no longer bound by
the terms of the contract (agreement). A repudiation of contract then occurs.
Where an employee acts in this way an act of ‘Gross Misconduct’ is deemed to
have taken place. Where an employer acts similarly in an outrageous manner,
the employee can conclude that they have been ‘Constructively Dismissed’. The
actions of the employer having brought the contract to an end. In either case
it can be taken that the contract has been irretrievably destroyed by the actions
of the other; in effect the contract is over.
It is for this reason that Gross Misconduct offences lead to dismissal without
notice. Notice cannot be given to end an agreement that is demonstrably over;
destroyed by the actions of the employee.
The introduction by the Dispute Resolution Regulations of the Three Step, and
Two Step procedures does no more than formalise what has been good practice
in commerce and industry for many years. Their introduction will hit hardest
with small employers who have previously managed their businesses without
formal procedures and, who through the introduction of the Regulations, will
be required to introduce a degree of formality in their business which may at
first appear alien and foreign to their management style. Over time, however,
these procedures should become the norm and second nature to all employers
and employees. The work of the Employment Tribunals will certainly be eased
by the introduction of the new formal procedures, as there is no doubt that
properly used, the job involved in determining if a dismissal is fair or unfair,
will be made much easier.
Chapter 5
Disciplinary procedures
step-by-step
Investigation.........................................................................................44
Investigation
No disciplinary action should be contemplated by a manager or supervisor before
they are sure, on the information available to them, that a breach of contract
has occurred. Any management activity not associated directly with achieving
the aims and objectives of their employing organization, such as dealing with
possible breaches of contract, is expensive, potentially disruptive and time
consuming. Discipline is not an end in itself; the question must always be asked
as to whether the possible breach of contract being considered is one which
damages, or has the potential to damage, the organization concerned. If the
answer to this question is ‘No’ then thought should be given as to the desir-
ability of proceeding further with the disciplinary action being considered. Action
taken on ‘moral grounds’ may make managers feel good, but may not be a proper
use of their time. It may be that with a little thought the problem under review
can be dealt with far more effectively through management appraisals, extra
training, or the introduction of fresh operating procedures.
Whilst working in my office one August morning preparing for a round of trade
union pay negotiations with the staff unions, I was rudely interrupted by the
Plant Director bursting into my office hauling with him a clearly frightened and
indignant production operator.
“I’ve caught one!” exclaimed the florid faced and clearly angry Plant Director
gesticulating to the employee. “I caught him red-handedly attacking a gearbox
with a hammer in an attempt to damage it. I want him sacked immediately!”
With that the Plant Director swept out of my office leaving the employee and I
looking at each other. As the Director departed, I heard my outer office being
filled with shop stewards, who were demanding to know why one of their
members had been manhandled off the assembly line by the Plant Director.
I sat the employee down and invited the most senior shop steward into my office
to act as his representative as I attempted to get to the bottom of what had actually
happened. Through interviewing the employee and subsequently his supervisor,
I managed to ascertain what had happened which led to the man being hauled
into my office in such an unceremonious manner. It appeared that the operator
had only been working on this section of the assembly line for one shift, of which
only one hour had elapsed. His job entailed fitting the front end of the exhaust
system underneath the vehicle, next to the rear of the gearbox. He had been
instructed in this activity by another operator who had been carrying out the
same function the previous day. This operator had found that the front end of
the exhaust pipes were slightly misaligned and in order to maintain production
he had taken to hitting the pipes with a large hammer to correct the misalign-
ment. He had pointed out the necessity for this crude rectification process to
the new operator, who now sat in my office demanding an apology for the way
he had been treated when he had ‘only been carrying out my job.’ What had
appeared as deliberate damage to company property, had in fact merely been
an attempt to keep the production line running, a laudable intention indeed.
My most difficult task then became the need to placate the Plant Director, and
convince him that what he had observed was not a deliberate attempt to sabotage
or damage components, but merely an attempt to keep production running and
crudely rectify faulty parts. No easy task!
This event reinforced for me the essential requirement to approach even the
most apparently blatant and evident breach of contract cautiously, and not to
proceed without first investigating and verifying that the facts as observed, were
indeed correct, and what they seemed to be.
Whenever an issue arises that could lead to the possibility of disciplinary action,
the employer should make every effort to establish the facts before proceeding
to commence disciplinary action. If the issue is one of alleged misconduct, it is
important to act fast while memories of events remain clear. Any delay could
prejudice the fairness of any outcome. Notes of the investigation should be taken
at every stage, in order that they can be produced, if required, either during
the disciplinary proceedings, or at any subsequent tribunal hearing.
Only when the investigation has been completed with notes, and any other
records, which might, in serious cases, include statements from employees, being
kept for future reference, will it be possible to ascertain whether or not a breach
of contract has occurred requiring corrective disciplinary action on the part of
management.
It is very important that investigations do not reach any conclusion on the breach,
or alleged breach of contract. The investigator should merely assemble the facts,
not reach any conclusions based upon them ahead of any disciplinary hearing.
Most certainly no investigation will be complete until the employee concerned
has had every opportunity to put their side of the case. It is essential to remember
that the purpose of the investigation is to determine if a breach of contract has
occurred, and if so, what the appropriate corrective disciplinary action should
be. It is not a criminal investigation, unless a crime has been suspected, and in
such cases consideration must be given at an early stage as to whether, or when
the police should become involved.
The results of any investigation will determine whether to drop the matter
concerned, deal with it informally, or arrange for it to be dealt with formally. It
should be made clear to the employee at an early stage that the investigation
is not of itself disciplinary action, merely an assessment of the facts to deter-
mine whether a breach of contract has taken place that needs to be addressed
by the parties.
In cases other than misconduct, the gathering of facts is equally relevant. In cases
of either short-, or long-term absence, the facts will be the dates of the periods
of absence, together with any documentary evidence, such as sick notes, letters
etc that relate to the absences. In cases of poor performance, or lack of capability,
the evidence will consist of examples of the work complained of, any complaints
from customers, information on the training provided to the employee and any
other relevant matter.
This statement, or letter, should contain enough information for the employee
to be able to understand what the issue, or issues are, that are being addressed
by the letter, and the reasons why this is considered important enough to be
raised in writing. The letter should state that the matter will be considered formally
through meeting with the employee, and that the outcome of any meeting could
lead to disciplinary action being taken against them. The letter should also remind
the employee of their right to be accompanied at any disciplinary, or subsequent
appeal meeting, by another employee of their choice, or their trade union repre-
sentative.
If English is not the employee’s first language, the manager or employer should
take steps to ensure that the employee fully understands what is being said in
the letter, and should ask whether the employee requires assistance, in the form
of an interpreter being present at any disciplinary or appeal meeting, to ensure
that the employee is able to understand and follow the proceedings. The letter
should invite the employee to a meeting to discuss the issue/s and should include
the proposed date, venue and time of the meeting. Finally, the employee should
be provided with copies of any documentation that will be used during the meeting
when considering the issue/s concerned.
The Regulations state that the employer is expressly required, to ‘send a state-
ment to the employee’. However, there is no specific requirement to ensure that
the employee receives the statement. So if the statement is sent to the employee’s
correct address, but does not arrive, or gets lost in the post, the employer will,
theoretically, have complied with this requirement. However, compliance with
the literal wording of the Regulations will not lead to an automatic finding of
fair treatment. The employer is at all times required to act reasonably. If an
employer dismisses an employee for misconduct, without the employee having
first had an opportunity to rebut the allegations made against them, then any
disciplinary action that results will almost certainly be considered unfair, unless
the employer can demonstrate that they have made every effort to contact the
employee, and given them an opportunity to defend themselves against any allega-
tions being made.
Invitations to a meeting
There is no requirement in the Regulations that the invitation to a meeting be
in writing. However, an employer who invites an employee to a meeting verbally
may have difficulty at a later stage if called upon to prove that such an invita-
tion was indeed issued. The sensible action would be to include any such invitation
in the initial letter advising the employee of the matter under consideration.
Provision of evidence
The amount and type of documentary information to be included with the One
Step letter is not clarified in either the Act, or the ACAS Code of Practice, however,
the employer must set out in writing the employee’s alleged conduct or other
circumstances which lead to him contemplating disciplining, or dismissing the
employee. It is likely that this information will amount, in a misconduct situa-
tion, to evidence that has emerged from the employer’s investigation into the
matter in question. The employee will need to be aware of any such evidence
in order to be able to explain his or her case. The grounds for including such
information, however, is not limited to misconduct cases. When the matter was
debated in the House of Lords, it was emphasised that although investigations
are usually associated only with misconduct cases, the government believed that
the gathering and prior disclosure of all relevant information was just as appro-
priate in any disciplinary or redundancy matter. Also, if the issue relates to lateness,
or frequent absence, it is advisable to include with the letter a summary of the
dates and times when absences or lateness occurred.
Where the investigation into an allegation of misconduct has led to the produc-
tion of witness statements from employees working in the immediate vicinity
of the employee concerned, thought needs to be given as to whether or not to
send such witness statements to the employee ahead of the meeting. Certainly
it would not be a good idea for the statements to include any names, or other
identification, enabling the employee to identify the employee/s concerned. Where
common sense prevents this, due to the content of the statements making it
inevitable that the identity of the employee/s concerned would be revealed simply
by reading the statements, I would recommend that a summary of the evidence,
drawn from the witness statements be written up and issued to the employee
concerned, to avoid any unpleasantness or friction developing in the workplace
ahead of the actual meeting. The employee and their representative can be
afforded additional time immediately preceding the disciplinary meeting, to peruse
the actual statements, and prepare questions for the witnesses concerned, if
required.
The right to be accompanied will apply to any disciplinary meetings held as part
of the statutory disciplinary or dismissal procedures. This includes any meetings
that take place after the employee has left the employment of the employer. Informal
discussions, or counselling, do not qualify for the right to accompanied.
Fellow workers or trade union officials do not have to agree to any request to
accompany an employee at any disciplinary or grievance hearing and it would
be improper if pressure was exerted on them to attend.
Any worker who agrees to attend as a companion for another employee at either
a disciplinary or a grievance hearing is entitled to have a reasonable amount
of paid time off to fulfil that responsibility. This should cover not only the hearing,
but also time to understand the facts of the matter and to prepare for the actual
hearing.
Wherever possible the employer should allow the companion to have a say in
the timing and the date of the meeting. If the companion cannot attend on the
Care should be taken to cater for the special circumstances that could arise if
either the employee concerned, or their companion, was disabled in any way.
It could be that they will require assistance, which may involve another person
helping them, if the meeting is to be considered fair.
Before any hearing the employee should tell their employer who they have chosen
to accompany them. The companion should be allowed to address the hearing
in order to:
They may also confer with the employee during the meeting and ask questions
of any witness who is in attendance at the meeting. They should not, however,
answer any question put to the employee, on the employee’s behalf. Nor should
they prevent the employee from putting their own case to the meeting.
• A meeting must take place before any disciplinary action takes place
and
• The employee must take all reasonable steps to attend the meeting, and
• After the meeting, the employer must inform the employee of (sic) his
decision and notify the employee of the right to appeal against the
decision if he or she is not satisfied with it.
Wherever possible the timing and location of the meeting should be agreed in
advance with the employee. The length of time between the written notifica-
tion and the meeting taking place should be long enough to allow the employee
to prepare for the meeting. But not so long that memories fade. The meeting
should be held in a private location and steps should be taken to ensure that
the meeting can proceed without interruption.
Prior to any meeting taking place, the employee must be given a reasonable oppor-
tunity to consider his or her responses to the information contained in the One
Step statement. The concept of reasonableness is written throughout the statu-
tory procedures. There is no definition in the Regulations as to what would be
considered a reasonable period to consider the facts given to an employee in a
One Step statement. However it can be assumed that a period of between two
and three days as a minimum would be required to meet this requirement in a
case of simple misconduct or absence from work. The complexity of the circum-
stances involved in each case of potential disciplinary action should be used by
employers as an indicator of what would be considered a reasonable period of
time in any particular disciplinary case.
The DDP states that the employee must take all reasonable steps to attend the
Two Step meeting. Normally the employer will invite the employee to attend
such a meeting during working hours. Where an employee falls ill, or is prevented
from attending on other valid grounds, the employer should offer the employee
an alternative meeting date. A decision may be taken in the employee’s absence
if they fail to attend the rearranged meeting without good cause.
One factor which could influence the timing of any meeting is the availability
of the employee’s chosen companion, or their trade union representative, to attend
the meeting on a specific date and time. If the companion cannot attend on a
proposed date, the employer can suggest an alternative time and date, so long
as it is reasonable, and is not more than five days after the original date chosen
for the meeting.
At the meeting the employer should outline the complaint against the employee
and go through any evidence that has been gathered in support of the allega-
tion. The employee should be allowed to set out their case and answer any
allegations that have been made against them. The employee should also be
allowed to ask questions as the proceedings develop, present any evidence they
may wish to present to the meeting, call witnesses of their own, and be given
the opportunity to raise points against any information provided by witnesses.
During the meeting the employer should take note of the proceedings (or arrange
for someone to take notes on their behalf). These notes can be written up after
the meeting has ended and agreed wherever possible with the employee. Where
agreement is not possible, then any difference of recollection should be
recorded.
At the conclusion of the meeting the employer must decide what action if any
should be taken in regard to the matters that have been the subject of the meeting.
The same assumptions that lead to the appointment of managers without first
providing them with the necessary training to ensure that they understand, and
are able, to carry out their new roles effectively also occurs when it comes to
holding or conducting disciplinary or grievance meetings. Managers who are
• Ensure that all of the steps that must be taken prior to any hearing
are properly followed, such as the One Step letters, or statements being
sent in the case of a disciplinary hearing, or received in the case of a
grievance hearing. These, together with essential supporting evidence
or documentation being sent to, or received from, the employee/s
concerned in good time to enable proper preparation for the meeting.
• Ensure that the employee has been advised of their right to be repre-
sented by an employee, or trade union representative of their choice.
• Open any meeting by ensuring that all of the matters under point 3
above have been carried out to the employee’s satisfaction.
• Agree the agenda for the meeting with the employee and his/her
representative.
• Ensure that the representative understands the role they are to play
in the meeting and are happy with the format and structure of the
meeting.
• Open the formal part of the meeting by setting out its purpose and
outlining the management reasons for calling, or agreeing to the
meeting, and in disciplinary hearings, go on to introduce the relevant
• Invite the employee (and representative) to put their side of the matter,
and assist them in questioning, or expanding on the evidence available
to the meeting, and allow them to raise any points with which they
have concern, or wish to bring to management’s attention.
• Announce any decision/s that have been reached, and remind the
employee of their right of appeal if they disagree with the meeting’s
findings.
• Agree the notes with the person charged with the task of drafting these,
ensuring that the employee and his/her representative have the
opportunity to comment on them before their final production.
Where agreement is not possible arrange for the employee’s version
of events to be recorded separately.
8. Subsequent developments;
The importance of good clear records cannot be under stated. At any subse-
quent Employment Tribunal these documents can be ‘worth their weight in gold’.
Verbal testimony has value when given by competent and confident witnesses,
but it can be challenged and shaken by good cross examination. But when such
testimony is validated by supporting agreed documentation, the testimony of
even a weak witness is strengthened immeasurably, and the value of cross exami-
nation subsequently diminished.
Chapter 6
Disciplinary sanctions
Disciplinary sanctions and warnings ................................................58
A final written warning should be just that. It is one step away from dismissal.
It is saying effectively that this is the last chance for the employee to work to
the standards laid down by the contract of employment. They are, to coin a phrase
‘Drinking in the Last Chance Saloon.’ Managers should avoid any ambiguity
when writing these. Phrases such as ‘Your employment may be terminated’ must
be avoided. The letter must state clearly and unambiguously that the employ-
ment will end if the breach, or a similar breach reoccurs.
Where the breach is persistent, or very serious, then the ultimate step of ending
the contract may be the only route left open to the employer. When such action
is required, the employer is recognising the reality that the contract cannot
continue. That the employee’s performance – or non-performance is such that
there is no alternative but to end the contract of employment and seek a fresh
recruit to carry out the work for which the dismissed employee was engaged.
In such cases the contract will end by the employer giving the requisite notice
to the employee, unless the dismissal is on the grounds of Gross Misconduct.
Gross Misconduct dismissals are without notice, or pay in lieu of notice.
Warnings do not remain live for ever. It is important they should be erased after
time, although evidence of the warning can remain in an employee’s personnel
file. The recommended life of a warning depends on its severity but as a broad
guide:
Certain organizations also allow for demotion or reduction in pay and benefits
as an alternative to dismissal, but these can only be invoked where the contract
of employment allows for this, and the employee agrees. To impose a change
in any fundamental term of an employee’s term of employment, without their
prior agreement, is to risk a successful claim of unfair ‘constructive dismissal’.
The sequence of warnings does not have to be followed like ‘steps in a ladder’.
The severity of the breach will indicate the level of disciplinary sanction needed
to rectify it. The objective is always to get the employee back within the frame-
work of the contract of employment, operating as required by its terms.
Holidays are an agreed absence from work. They are part of the contract terms
and are almost always agreed in advance. Sickness, lateness and other
absences, however, are not. In their initial form they are a breach of contract
that is subsequently approved through the provision of satisfactory supporting
information, or evidence being given to the employer by the employee. Until
approval has been given, they remain a breach of contract.
this is not to say that the issue of absence through ‘sickness’ is not a serious
issue. In certain public employing organizations, sickness absence has reached
almost epidemic proportions – up to an average of five weeks a year in some
reported instances in 2005. This means, when added to 20 statutory days holiday
plus seven bank or public holidays, that employees in these organizations are
absent for over ten weeks a year – almost 20% of the working year! A serious
and expensive management problem indeed.
Where employees are in the habit of providing self certification to cover frequent
short-term absences, employers should demand that these be replaced by doctor’s
sickness certificates, even if the employer covers the cost of these. Only by rigor-
ously checking, and following up each absence, will lasting change be achieved.
There are no short cuts to achieving the change in culture necessary to force
absence down where it has become an established part of the culture of any
organization.
Before taking serious disciplinary action against employees who are frequently
absent from work, employers would be well advised to:
• Warn the employee under the disciplinary procedure that their level
of absenteeism is unacceptable; that they must improve, explaining
the time limit within which this must be done if more serious
disciplinary action is not to follow.
If the absences continue, and the contract of employment allows for it, (the inclu-
sion of such a clause into a contract of employment is to be strongly recommended)
the employee should be medically examined by a doctor selected for this purpose,
and paid for by the employer. The doctor should be sent full details of the
employee’s absences, together with copies of any documentation that they have
provided in support of these. The doctor should be provided with information
on the nature of the employee’s job, and be asked to examine the employee to
determine if the pattern of absences that have been demonstrated in the past,
are likely to continue, and if so, if there is any action that the employer can take
to help the employee to improve their attendance record. Seeking medical infor-
mation about employees must be handled with extreme care and sensitivity. Where
the employee is of the opposite sex from the manager concerned in the investi-
gation, every effort must be made to ‘tread carefully’ when seeking medical
information. All medical information obtained regarding an employee must be
treated in the utmost confidence.
Where information is sought from the employee’s own doctor, the requirements
of the Medical Reports Act 1988 must be met. This gives the employee the right
to see, comment on and, where considered necessary, amend the report, before
it is passed to the employer. These provisions, however, do not apply when the
employer nominates, and pays for, a doctor to conduct the required medical
examination.
The report that the employer receives back from the doctor should enable them
to identify any underlying medical problem that the employee may have which
is causing their absences, and enable the employee and the employer to agree
on a course of action to manage this in the future – perhaps the employee can
move to part-time working, or their duties be changed such as to minimize the
impact of any absences they may have in the future on the efficiency and effec-
tiveness of the organization.
• Identify that the employee suffers from a medical condition that gives
the employer no option but to terminate the employee’s contract of
employment. In all such cases the employee must be given every
opportunity to challenge the report’s findings before their employment
is terminated. To do so, however, they must, by the very nature of their
challenge, move to a position where their attendance at work is
improved, or
• State the good news that the employee has no underlying health
problem that the employer must take into account. This means that
the employee should be in regular attendance at work in the future.
Long-term sickness absence is another matter entirely and whilst similar in the
course of action that must be followed when considering possible dismissal, it
must be handled in a manner set out later in this Report.
The rules and operating procedures will lay down the standards of perform-
ance and behaviour required of employees in order to properly carry out their
duties and fulfil their obligations to their employer.
• Poor timekeeping
• Unauthorised absence
• Gross Misconduct
• A ‘catch all clause’ stating that any given list is not exhaustive
These are all issues where a failure to comply will lead to disciplinary action
depending on the severity of the breach. They are clearly distinguishable from
Gross Misconduct which is action so serious as to enable the employer to conclude
that the action complained of has destroyed the contract of employment; such
as when the employee absconds with money from the till, or assaults another
employee. In such cases when the employer is satisfied that what he believes
has happened, has in fact happened, then the contract is over. It has been ended
by the actions of the employee. There is no doubt in the matter. The fundamental
basis of ‘trust and confidence’ required for the proper continuation of any contract
has been irredeemably destroyed by the employee’s actions, or lack of them.
• Fighting or drunkenness
• Illegal drug taking and alcohol use during working hours – (or outside
if driving or flying is involved)
• Theft or fraud
• Serious insubordination
• Serious negligence
However, the burden of proof always remains with the employer in every instance
of misconduct, or gross misconduct, to establish justification for any discipli-
nary action that they may have taken. The burden is not as onerous as that required
by a court of law, which is defined as ‘beyond reasonable doubt’, but none the
less it is action such as no employer would reach without first carrying out a
full and proper investigation to establish the facts.
Over time the Employment Tribunal system has established the tests that
employers can be expected to meet if they wish to satisfy the requirements neces-
sary to establish a ‘fair’, as opposed to an ‘unfair’ dismissal. These tests are
appropriate guides when dealing with any matter that falls under the heading
of either ‘Misconduct’ or ’Gross Misconduct’.
The leading case over the years concerning misconduct has been British Home
Stores v Burchell (1978 EAT).
This was a case of Unfair Dismissal on the grounds of misconduct which focused
on the reasonableness of the dismissal. This case established the steps that an
employer must follow if a misconduct dismissal is to be found ‘fair’.
• Establish the fact of the belief and the fact that they did believe it
• Demonstrate that they had carried out as much investigation into the
matter as was reasonable in all of the circumstances
Although the tests set out in British Home Stores Ltd v Burchell are a useful guide
in assessing the reasonableness of conduct dismissals, a simplistic application
of the test in each and every conduct case may lead to errors occurring. In applying
the test, tribunals are advised to bear in mind that an investigation may not be
appropriate, or required in cases where the employee has admitted to the miscon-
duct in question; and that, even where the dismissal fails one or more parts of
the test, it is still necessary for any tribunal to consider whether the dismissal
came within the band of reasonable responses open to the employer.
Whilst ‘Burchell’ concerns dismissal, the tests it sets are appropriate to any case
of serious misconduct, whether or not the outcome is the dismissal of the employee
in question, and it serves to act as a yardstick when considering any issue of
alleged misconduct.
Chapter 7
Ending employment
How employment can end..................................................................67
Resignation...........................................................................................67
Compromise agreements....................................................................70
Independence of adviser.....................................................................72
Qualification dismissals.......................................................................81
Conduct dismissals..............................................................................82
• Resignation
• Redundancy
• Frustration
Resignation
The general principle to be observed here is that either party can give notice
to the other to terminate the contract of employment and that once notice has
been given it cannot be unilaterally withdrawn.
The length of notice can be agreed between the parties but must not be less than
that allowed for by statute, which is:
• not less than one week’s notice if the period of continuous service is
less than two years, but over one month.
• not less than one week’s notice for each year of continual employment
of two years or more, to a maximum of 12 weeks notice after 12 years
continuous service.
The statutory notice period must be paid by employers when ending employ-
ment irrespective of the employee’s circumstances. Employers often find it
difficult to grasp that when they end the employment of an employee who has
been absent from work on the grounds of sickness for a lengthy period, so lengthy
that they have long since ceased to be entitled to any pay from their employer,
that the employee must still be paid their full notice entitlement when their employ-
ment is ended by the employer.
The minimum statutory notice provision does not prevent either party from
waiving the right to notice, or effect the right of either party to terminate the
contract without notice in response to a serious breach of contract by the other,
or prevent the employee accepting payment in lieu of notice.
If notice (other than the statutory minimum) has not been expressly agreed
between the parties to the contract, then the law requires that ‘reasonable notice’
be given, with the length of the notice being dependant upon factors such as
seniority, status, length of service etc. None of this should detract from the require-
ment to provide, as a minimum platform, the statutory notice as set out above.
Employers must avoid accepting ambiguous resignations where words are used
in the ‘heat of the moment’ that could be interpreted as a resignation on the
part of an employee. Where employees give verbal notice and provide nothing
to their employer in writing, then the employer should create their own evidence
by writing to the employee and confirming their acceptance of the verbally given
notice. In this way, written documentation will exist if at a later stage the employee
claims they were dismissed and did not resign, or intend to resign. The test applied
by tribunals here is what an objective reasonable listener, taking all the facts
and circumstances into account, would have concluded from the words used.
Where an employee resigns in ’the heat of the moment’, a tribunal or court would
expect the employer to have subsequently made ‘reasonable investigations’ to
establish if the employee really meant to resign, or was simply letting off steam.
The employer in these circumstances would be expected to give the employee
an opportunity to clarify the situation and confirm their intentions.
Problems can arise when employees do not want to work their notice periods,
however short. Either party can waive the notice period; though an employer
faced with such an option would be well advised to insist on a written request
to waive the notice period before agreeing to grant it. Where employees simply
walk away without working their notice period they are in breach of contract.
Technically an employer would be entitled to take legal action to recover any
costs incurred by them in plugging the gap in their operation caused by such
behaviour. Usually, however, it is not worth the time and legal costs that would
be incurred by following such a course of action.
One step that can be taken to minimize the cost of such a refusal to work notice,
is to write into all contracts of employment the right of the employer to deduct
from any outstanding holiday pay that may be owed to the employee, an amount
equivalent to the period of notice not worked by the departing employee. Provided
that this right was clearly set out in the contract, then the employer would not
be in breach of the Wages Act, which makes deductions from pay unlawful, unless
agreed in writing between the parties.
Where the notice period set out in the contract is lengthy, it is very often diffi-
cult to force an employee to work their period when they have made up their
mind to leave. It is not unusual for periods of three to six months to be the norm
in directors’ or senior employees’ service contracts. The reasoning behind
providing such lengthy periods of notice is that they give comfort to valuable
employees in the event of termination, that they will have a reasonable finan-
cial cushion available to provide for them whilst they seek alternative
employment. On the employer’s part the attraction can be that a senior
employer cannot simply give a short period of notice to end the contract and
walk into a similar position with a competitor. Whilst this risk can be guarded
against through the drafting of specific restrictive covenants to protect the
employer’s business, there is no guarantee that such covenants will be upheld
by the courts if tested. In all too many cases long periods of notice result in either
the employee receiving a lump sum payment in lieu of notice, or alternatively,
where the employer believes that the employee intends to join a competitor, the
operation of ‘garden leave’. Under this term the employee remains at home during
the notice period available to their employer if required. In this way the employee
is theoretically prevented from working for any other business.
prior to the date agreed, but was too sick to report for work on the due date.
The employer terminated the employment on the terms previously agreed. The
employee complained that she had been dismissed and the courts found in her
favour, stating that the reason for the employee’s failure to return to work was
not the extended leave, but sickness, an event which could have occurred at any
time under the terms of the contract.
There may be circumstances where both parties are aware that the contract is
not working to the satisfaction of either. It is always open to them to seek a
mutually satisfactory resolution. This can include the termination of the contract
on terms agreeable to both parties. The law provides for this through what are
known as ‘compromise agreements’.
Compromise agreements
This type of agreement is provided for by the Employment Relations Act 1999,
and is useful when the parties have already reached agreement, or where one
of the parties refuses to reach a settlement without further legal assistance or
advice. There may indeed be no ongoing disagreement, but the parties, having
reached an agreement, wish it to be set out in legal form. A compromise agree-
ment can resolve issues in a legally binding document that a tribunal has
jurisdiction to rule on.
Compromise agreements are legally binding agreements which set out the terms
on which a settlement surrounding the termination of a contract of employment
has been reached between an employer and an employee. Their main purpose
is to resolve disputes that an Employment Tribunal would otherwise have juris-
diction to determine. In this regard they serve two basic purposes:
Employment Tribunals cannot consider a claim that has been settled by means
of a properly constituted compromise agreement. However, this applies only
to the types of compromise agreement that meet the criteria set out below. Parlia-
ment, through employment law, gives employees protection whilst in
employment, including the right to enforce their rights at an Employment
Tribunal. Employers are not able to buy this right from employees, nor are
employees entitled to sell it, therefore any agreement that purported to do so
would be unenforceable unless it was in the form of a compromise agreement
i.e. the method laid down by parliament.
All other forms of agreement are invalid if they seek to preclude the employee
from pursuing a claim at Employment Tribunal.
In each case the employer wishes to ensure that the matter is settled perma-
nently and therefore a subsequent claim to an Employment Tribunal cannot arise.
the agreement on their right to pursue the relevant matter at any subsequent
Employment Tribunal. A qualified person may be:
• The agreement must state that all the conditions imposed by statute
have been met.
Independence of adviser
Any named adviser must clearly be independent. This means that a solicitor who
is acting for both parties may not be used, nor may the employer’s solicitor. It
can also be argued that a solicitor drawing up a compromise agreement for an
employee is not acting independently if their fee is to be paid by the employer,
although payment made by the employer, or an agreement to cover an agreed
sum, is not unusual.
concerned about this should first seek advice from a qualified employment adviser
before proceeding.
For the purposes of unfair dismissal and redundancy law an employee is dismissed
if he or she is employed under a contract for a fixed term and that term expires
without being renewed. Such an employee can therefore bring a complaint of
unfair dismissal or claim redundancy in the same way as a permanent employee.
All ‘fixed term employees’ are given the same protection at the end of their
contracts as permanent employees and should be treated as such.
1. For the purposes of this Part (of the Act) an employee is dismissed by
his (sic) employer if (and subject to sub section (2) and section 96, only
if):
• at a time within the period of that notice the employee gives notice
to the employer to terminate the contract of employment on a date
earlier than the date on which the employer notice is due to expire;
and the reason for the dismissal is to be taken to be the reason for which
the employer’s notice is given.
• Workers who fail to satisfy the status of ‘employee’ (as set out in
Chapter 2).
• Share fishermen.
• The police and prison officers and members of the armed forces.
An employee shall be treated as dismissed by his employer if, but only if:
• the reason (or if more than one, the principle reason) for the
dismissal, and
• that the employee could not continue to work in the position without
contravention (either on his part or that of his employer) of a duty
or restriction imposed by or under an enactment.
3. In subsection(2)(a):
Note: The above reasons do not require a qualifying period of one year’s service
before they apply to employees. They apply from the first day of employment.
The Employment Act 2002 (section 34) inserted a new section 98A into the ERA.
This new clause (S.98A(10) provides that, where an employee has been
dismissed in circumstances in which an applicable Disciplinary and Disputes
Procedure has not been completed, and such non completion is due wholly or
mainly attributable to the failure of the employer to comply with the require-
ments of the DDP, the employee will be treated as having been unfairly
dismissed. The insertion of this new section effectively created a new category
of automatically unfair dismissals. i.e. those where the DDP has not been followed
by the employer when carrying out the dismissal.
Having established a fair reason to dismiss an employee under the ERA, the
determination of the question as to whether the employment was ended fairly
or unfairly, having regard to the reason shown by the employer:
The ERA does not define ‘reasonable or unreasonable’, it merely sets a subjec-
tive motivation that must first be met by the employer before the question of
fairness or otherwise comes to be considered. The test of ‘fairness’, as the Act
says, ‘shall be determined in accordance with equity and the substantial merits
of the case’, i.e. each case will revolve around the circumstances, facts and events
that occurred leading up to the dismissal in question.
Note: Chapter 4 covers the steps that must be followed by an employer to ensure
that the Disputes Resolution Regulations brought in by the Employment Act
2002 are followed in every respect.
Managers who are involved in the dismissal of any protected employee must
remember that a dismissal may be unfair even where the employer has stuck
rigidly to the procedures. This is because tribunals will always look at whether
or not the employer has a fair reason for dismissal, and behaved reasonably in
the way they went about the dismissal. The tribunal will refer to the ACAS Code
of Practice on Disciplinary and Grievance Procedures, as part of their deliber-
ations as to whether or not the employer behaved in a reasonable manner.
Acting reasonably can be summarised through the following key principles that
define ‘reasonable’ behaviour:
• As set out above, the ERA provides for the following reasons one of
which must be established for a fair dismissal to occur:
– Capability or qualifications of the employee for performing work
of the kind which he was employed by the employer to do,
Capability dismissals
‘Capability’ is defined in the Employment Rights Act 1996 as referring to:
• Skill
• Aptitude
• Health, or
When relying on this reason employers must demonstrate that the employee’s
capability or qualifications were the reason, or principle reason, for the
dismissal.
other reasons. Only a thorough investigation prior to any action, coupled with
training, mentoring and an ongoing review will determine whether the problem
can be overcome. In the case of over promotion, consideration will be required
to determine if an alternative position is available which the employee can be
transferred back into. In the case of incompetence, laziness or poor attitude,
then the disciplinary procedure must be invoked. Any disciplinary action must
conclude with:
Only after these steps have been followed would dismissal on the grounds of
incompetence be considered fair. As with all dismissals the Three Step proce-
dure required by the Disputes Resolution Regulations introduced by the
Employment Act 2002 would need to have been followed prior to any dismissal
occurring.
Ill health itself breaks down into two categories, frequent short-term bouts of
ill health, and serious long-term absence caused by ill health. When considering
claims of unfair dismissal on the grounds of ill health Employment Tribunals
are not particularly interested in the past events. What they concentrate their
attention on is whether or not the employer has taken reasonable steps to ensure
that they understand the nature of the employee’s ill health and, as importantly,
what is likely to happen in the future.
Short-term absence has been covered thoroughly in the section dealing with
disciplinary action on pages 60-63 entitled ‘frequent short-term absence’. Where,
after following the steps laid down in this section of the report, the frequency
of absence does not reduce to acceptable levels, then dismissal may be the only
action left for the employer to take.
Long-term absence on the grounds of ill health is another matter entirely. Even
where the absence extended into many months in length the crucial question
is, what was the status of the employee’s health at the time the decision to dismiss
was made? Was a return to work imminent or not?
The primary test for a tribunal in determining whether or not an ill health dismissal
was fair was established in the case of Spencer v Paragon Wallpapers Ltd 1976
EAT – the Employment Appeal Tribunal stated that:
‘The basic question which has to be determined in every case (of long-term
absence) is whether in all the circumstances the employer can be expected
to wait any longer (for the employee to return to work), and if so how much
longer?’ The relevant circumstances to take into account include ‘the nature
of the illness, the likely length of the continuing absence, and the need of
the employers to have the work done which the employee was engaged to
do.’
In order to answer these basic questions an employer must carry out such inves-
tigation into the employee’s absence, and the circumstances surrounding it, as
is proper. The employer should consult fully with the employee concerned, in
person whenever possible, and through correspondence where this is not
possible, to establish the employee’s circumstances and, where known, their likely
return to work date. Secondly, the employer should seek precise medical infor-
mation on the employee’s health – bearing in mind the requirements of the Medical
Reports Act 1985.
The employer must ensure that the questions asked of the medical practitioner
are precise: in particular when, if ever, is the employee likely to return to work?
If the employee blocks, or prevents the employer obtaining precise medical infor-
mation upon which a considered and reasonable decision regarding their absence
can be based, then the employer should write to the employee explaining that
a failure to allow the employer access to this essential medical information will
force the employer to make a decision on the employee’s future employment
solely on the length of the absence. Any such letter should be sent by recorded
delivery to ensure that evidence of its despatch will be available if subsequently
required.
If the medical opinion states that the employee is unlikely to return to work in
the near future, and the employer is satisfied that its business interests require
that the job the employee was employed to carry out is essential, it will normally
be fair to dismiss. It must be stressed, however, that each case of dismissal on
the grounds of ill health must be considered on its own merits.
Qualification dismissals
Qualification is defined by the ERA as meaning:
• Any degree
• Diploma or
There is little case law to guide employers on the matter of an employee’s lack
of required qualifications. Where the qualification is an essential feature
required for the proper performance of the job, and the employee is discov-
ered not to have the requisite qualification, then the matter is straightforward.
Some employers choose to dismiss under the heading of misconduct having
been misled, or lied to by the employee concerned. If, however, following inves-
tigation, and after giving the employee the normal right of reply and appeal the
decision is made to dismiss, it is unlikely that an employee who has misled or
lied to an employer with regard to holding a qualification could mount a successful
claim of unfair dismissal.
Conduct dismissals
This type of breach is perhaps the easiest of all to deal with. It is often specific,
easily identified and quickest to resolve. The offending behaviour either did, or
did not occur and an investigation usually quickly identifies the facts. It covers,
as the name implies, the conduct or behaviour of employees, both against the
written disciplinary rules of the organization and the standard norms of accept-
able behaviour in the industry and society.
If the behaviour can be said to have a detrimental effect on the smooth running,
industrial relations, harmony, image or financial performance of the organiza-
tion, then it can be considered behaviour that must be addressed by management.
Where the behaviour continues after training in the standards required,
counselling and warnings which clearly state how seriously the management
view the offending behaviour, or is so outrageous as to be considered ‘gross’,
then it may be that there is no alternative left to management but to end the
contract, with notice, unless the breach is considered as ‘gross’
1. Whether the employer believed that the employee had been guilty of
the misconduct when they dismissed him;
2. If so, were there reasonable grounds for holding this belief? And,
Case law has established that the Employment Tribunal may not substitute its
own views for that of the employer when considering whether it was reason-
able to dismiss the employee, rather than issuing a warning, or applying some
other penalty. However, if the tribunal find that the employer’s actions in treating
the matter as one for which dismissal was the appropriate penalty was outside
of the ‘bands of reasonable responses’ open to an employer faced with similar
facts and circumstances, then the dismissal will be unfair. Of crucial importance
following 1st October 2004, and the introduction of the Disputes Resolution
Regulations, brought into being by the Employment Act 2002, is that the employer
is seen to have carried out as a minimum, the ‘Standard Three Step’ discipli-
nary procedure, or ‘Modified Two Step Procedure’, as appropriate. Failure to
comply with the Regulations will lead to an automatic finding of unfair
dismissal, irrespective of the circumstances involved.
Redundancy dismissals
Redundancy dismissals fall into a category of their own. They are not a disci-
plinary dismissal, although the disciplinary record of an employee may be
considered as part of any redundancy selection process. Redundancy is ‘prima
facie’ a fair reason for dismissal, but it must meet the ‘redundancy tests’ – the
job the employee is employed to do must have ceased or diminished and any
redundancy must conform to essential procedures on selection, consultation etc.
Any decision to make employees redundant must be based on objective
criteria for selection, and all employees selected for redundancy must be fairly
selected using a published criteria.
OR
In summary therefore, an employee is redundant if, and only if, he/she is dismissed
because the employer ceases trading altogether, or because the employer closes
the particular workplace, or because the requirements of the business for
employees to carry out work of a particular kind have ceased or diminished.
Redundancy consultation
The Collective Redundancies and Transfer of Undertakings (Protection of Employ-
ment) (Amendment) Regulations 1999, which came into force on 28th July 1999
sets out the minimum requirements for consultation. Genuine consultation
involves entering into a discussion with an open mind and with a willingness
to be persuaded, before commencing the actual redundancy exercise.
Consultation must take place with the representatives of all the employees who
may be affected by any redundancy and not just those whom the employer
proposes to make redundant. Representatives are to be given specific rights to
time off and training. The remedies available to employees and their represen-
tatives in cases where employers fail to comply with the information and
consultation provisions are simplified and strengthened.
The duty to inform and consult representatives only applies where the employer
proposes to make at least 20 employees redundant at one establishment within
a period of 90 days.
• At least 90 days before the first dismissal takes effect if 100 or more
redundancies are proposed at one establishment within a 90-day period,
and
Meaning of ‘establishment’
The minimum periods for consultation depend on a given number of employees
being employed at any one establishment being made redundant. The defini-
tion of ‘establishment’ is also relevant in determining whether consultation has
to take place at all. The question here that frequently comes up is whether a multi-
sited enterprise is to be regarded as one establishment. There is no statutory
definition of establishment, so tribunals tend to adopt a common sense
approach when faced with this question.
Appropriate representatives
The employer is under a duty to consult with the ‘appropriate representatives’
of any of the employees who may be affected by the proposed dismissals or by
measures taken in connection with those dismissals. This includes employees
who, although not under threat of dismissal, might be directly or indirectly affected
Disclosure of information
The employer should provide the appropriate representatives with sufficient infor-
mation to play a useful and constructive part in the consultation process. The
employer is required to provide the following information in writing to the appro-
priate representatives as a minimum:
union representatives, posted to the main or head office of the union. The infor-
mation should be given in good time during the course of the consultations.
Remedies
If an Employment Tribunal finds that an employer has acted in breach of the
requirements it must make a declaration to that effect and may make a protec-
tive award. A protective award is an award of pay to the employees affected by
the failure to consult properly.
The 1999 Regulations clarify the categories of person who may bring a
complaint. A complaint may now be brought:
The protective award will be made for a ‘protected period’ beginning with the
date on which the first of the dismissals takes effect, or the date of the award
(whichever is the earlier), and continuing for however long the tribunal decide
is ‘just and equitable’.
Small-scale redundancies
Where an employer proposes to make fewer than 20 people redundant within
a period of 90 days, the employer must embark upon consultation with
individual employees. The employer should outline to any affected employee
what the proposals are, and should give the employee an opportunity to consider
the situation and come back to the employer at a later date with any comments,
suggestions or ideas that the employee may have. The employer should be seen
to consider the employee’s representations.
To that end, at the commencement of the consultation process, the employer should
provide the same information to employees as that required to be given to employee
representatives as set out above. This can be in the form of a fact sheet handed
to all of the employees who could possibly be affected by the redundancy.
The employer must make their findings known to the employee/s concerned and
give the employee the opportunity to challenge the results if required. The
employer must also consider any representations made by the employee (or his
or her representative) in respect of such findings, and any resultant selection.
These representations will be a part of the consultation process, and detailed
records should be kept of all discussions and consultations in case of any future
challenge made by the employee/s to an employment tribunal.
Alternative employment
The employer should look to see whether instead of dismissing an employee,
he or she could be offered alternative employment. This should include consid-
eration of jobs held by employees with less service than the employee who is
to be made redundant. This is a concept known as ‘bumping’.
Redundancy pay
An employee who has completed two years’ continuous service and who is
dismissed for reasons of redundancy is entitled to a Statutory Redundancy
payment. The scales on which such payments are based are readily available
from ACAS or other government sources.
The most common example of this is where a driver loses his/her driving licence,
and the job consists mainly or wholly in driving. This does not mean that the
employer can automatically dismiss such an employee, there will still be a require-
ment that the ‘Three Step’ DDP be followed, and all of the circumstances. i.e.
length of the licence loss, possibility of alternative work etc, be considered before
the decision to dismiss is arrived at.
If an employer can show that the reason for the dismissal of an employee was
for a ‘substantial reason of a kind such as to justify the dismissal of an employee
holding the position which that employee held’ then the dismissal can be consid-
ered as potentially fair.
Whether or not the dismissal is actually fair, will turn on the specific circum-
stances related to the actual dismissal, taking into account the size and
administrative resources of the employing organization. As with all other
dismissals, the employer will have been expected to follow a ‘reasonable’ proce-
dure which meets the minimum requirements of statute.
To such dismissals can be applied the late Lord Justice Denning’s maxim ‘the
elephant test’; “Whilst an elephant may be described to you if you have never
seen one, there is no doubt that you will know one when you see it!” SOSR reasons
for dismissals fall into this category.
Frustration of contract
Frustration of an employment contract occurs when an event arises which
prevents the continued operation or performance of the contract which neither
party envisaged when drawing up the contract terms. Such events can include
(but are not restricted to) the death of either party, a major calamity, or catas-
trophe such as an earthquake, or other natural disaster or other similar happening
that is outside of the control of the parties, and whose happening prevents the
fulfilment or proper operation of the contract of employment. Frustration is a
well-known concept in contract law, and as such has become a part of employ-
ment contract law.
Constructive dismissal
The term ‘Constructive Dismissal’ has been coined to cover the circumstances
when an employee believes that their employer has unilaterally altered their
terms of contract in a significant way and, in so doing destroyed their contract
of employment.
Any unilateral change to any fundamental part of a contract, such as pay, hours,
holidays, location etc can lead to an employee bringing a claim at Employment
Tribunal that they have been constructively dismissed. Constructive Dismissal
occurs when the actions of the employer have been so outrageous as to enable
the employee to conclude that the contract of employment is over – destroyed
by the employer’s conduct or actions, thus entitling the employee to turn on their
heel and walk away without further notice.
This risk should not however deter employers from seeking to implement essen-
tial changes to any contract of employment. What they must first do, however,
in any attempt to make changes, is to consult extensively with all employees who
could be affected by any proposed change.
Unless the employees concerned are covered by a collective agreement, and the
contract statement makes this clear, consultation must take place with each
individual employee who could be affected by any change. The aim of the consul-
tation should be to reach agreement – in writing – to any proposed changes.
Where agreement is not possible, this does not mean that the change cannot
be implemented. What it does mean is that the employer must give notice to
the employee/s concerned, that their existing contract will be brought to an end,
and that re-employment – with unbroken service – on the terms of the new revised
contract will be offered to them at the contract’s conclusion. Whilst employers
do not have the right to unilaterally change terms and conditions of employ-
ment, they do have the right to give notice to end the contract. Provided that
they give notice to employees, which is at least as long as the notice period, the
employees are entitled to under the terms of their contract. Any employment
so ended will be deemed to have been terminated for SOSR (Some Other Substan-
tial Reason).
In effect, the employee’s contract on the old terms will have come to an end and
they will be offered continued employment on the new contract terms.
Provided the consultation has been substantial, the reasons for the change signif-
icant and economically justified, and the employees given every opportunity to
comment and suggest alterations that would achieve the employer’s aims, there
is every chance that any claim for constructive dismissal would fail. In the circum-
stances where the employee does not accept continued employment on the revised
contract terms, they will not be able to claim that their dismissal was made on
the grounds of redundancy. The job will still exist, albeit on revised terms, and
as such they will not meet the necessary qualification to entitle them to redun-
dancy pay.
What is important in this process is that trust and confidence are maintained
between the parties. This factor is crucial in the maintenance of any ongoing
contractual relationship, without it no contract can survive. Trust and confidence
are based on mutual respect and an observance of reasonable behaviour by both
parties.
Wrongful dismissal
Wrongful dismissal is a common law concept. It describes any dismissal which
has occurred contrary to the terms of the contract. Any gross misconduct
dismissal, which by its nature is dismissal without notice, is prima facie a
‘wrongful’ dismissal until the ‘gross’ aspect of the breach has been proven. It
was ‘wrongful’ initially because the contract was ended contrary to its notice
entitlement terms. Unfair dismissal on the other hand is a statutory term; a concept
of dismissal defined by statute. Prior to the introduction of legislation defining
the concept of ‘unfair dismissal’ the only legally arguable aspect of dismissal
was wrongful.
Where an ex-employee is able to argue that the terms of their contract were
not met at the time of termination then it is open to them to claim that their
dismissal was wrongful. Prior to 1944 Employment Tribunals had no jurisdic-
tion to hear claims of wrongful dismissal, as they were the province of the courts.
This was changed in 1994 with tribunals being given the power to hear claims
of wrongful dismissal, their powers to make awards are, however, limited to a
maximum of £25,000. Again, this figure is subject to annual review.
There is no limit to the damages that can be awarded for wrongful dismissal
by the courts, whilst Employment Tribunal awards are subject to maximums,
usually reviewed annually. The damages that can be awarded in cases of wrongful
dismissal relate directly to the loss suffered by the employee who successfully
argues that their dismissal was wrongful.
Authority to dismiss
Terminating a contract of employment is ending an agreement that had been
freely entered into by the parties. Even where short-term employees are involved
this is a significant action to take. It is important therefore that those managers
with the authority to dismiss are:
Also, that they are trained to understand the implications of their actions and
be fully conversant with the financial risks and implications involved, and all of
the procedures that they must follow if they are to be seen to have dismissed
‘fairly’ and in accordance with the terms of the contract/s of employment of the
employee/s concerned.
Where any doubt exists on the proper way to proceed, or whether or not the
employee could successfully bring a claim against the business, then professional
advice should be sought before proceeding further.
Chapter 8
Grievances
Grievances: an introduction ...............................................................95
Definition of a grievance.....................................................................97
Grievances: an introduction
Grievances are issues or problems which employees have about their job, or
any workplace issue that affects them. It has long been the established practice
for employers to provide a mechanism which enabled employees to raise any
such issues or problems for discussion and resolution informally with their
immediate management, before proceeding, where necessary, to involve more
senior management. This right has now become a statutory right with the passing
into law of the Employment Act 2002 and the requirements of the Disputes Resolu-
tion Regulations.
These Regulations contain two statutory grievance procedures (GPs) a three stage
‘standard’ procedure, and a two stage ‘modified’ procedure.
ACAS has long advised that employees should first raise any problem that they
have regarding the workplace informally with their immediate manager or super-
visor. This is fine providing that the problem that the employee is experiencing
is not with the manager or supervisor and the way in which they are managed.
In such instances to raise the issue with the manager or supervisor is clearly
inappropriate. ACAS’s advice has always been that if informal discussion does
not resolve the issue, then the matter should move to a more formal level with
the grievance being referred upward in the management chain in order to seek
a resolution.
supervisor of the worker involved, and where the standard grievance proce-
dure would be wholly inappropriate to deal with the situation. It is to be
recommended that any complaint of a sexual or racial matter be raised directly
in writing at director or senior manager level, bypassing the junior ranks of
management, who may be involved in any standard grievance procedure.
It is important to note that the new statutory GPs introduced on 1st October
2004 are not intended to be best practice guides, but minimum legal standards.
They provide a minimum platform entitlement given by the legislation to all
employees. Employers are free to provide their employees with a more compre-
hensive system of grievance resolution if they choose, they are not, however,
free to provide a system which is less rigorous than the statutory minimum. This
process builds on the long established implied contractual entitlement of
employees, that their employer take reasonable steps at all times to address issues
affecting their job or workplace. A failure to do so could entitle an employee to
resign and successfully claim unfair constructive dismissal.
In order to ‘give teeth’ to the regulations regarding GPs, the EA 2002 provides
that where a statutory GP applies in respect of an employee’s workplace concern,
and where an employee presents a complaint to an Employment Tribunal which
arises from that concern, the tribunal claim will be inadmissible unless the
employee has first sent the complaint to the employer – One Step – and then
allowed 28 days to elapse before advancing their complaint to the tribunal. Where
an applicable GP has not been completed due to the action of either party, the
tribunal has the power to increase or decrease any subsequent award by between
10 and 50% depending on the allocation of fault for the failure.
Step 1 The employee sets down in writing the nature of the grievance and
sends this to the employer.
Step 2 The employer must invite the employee to at least one hearing, at a
reasonable time and place at which the alleged grievance can be
discussed. The employee must inform the employer what the basis
for the grievance is. The employee must make all reasonable efforts
to attend the meeting. After the meeting the employer must inform
the employee of any decision reached, and offer the employee the
right of appeal.
Step 3 If the employee considers that the grievance has not been satisfac-
torily resolved, he/she must inform the employer that he/she wishes
to appeal against the employer’s decision, or failure to make a decision.
Where possible a more senior manager should handle any resultant
appeal meeting. After the meeting the employer’s final decision must
be communicated to the employee.
Definition of a grievance
The Regulations define a grievance as:
‘a complaint by an employee about action/s which his (sic) employer has taken
or is contemplating taking in relation to him’.
This definition will also cover actions of a third party (such as a fellow
employee) in cases where the employer would be vicariously liable for those
actions. This definition covers harassment – either racial or sexual, victimisa-
tion, bullying etc.
The regulations also provide that the GPs apply in relation to any grievance about
any action by the employer that could form the basis of a tribunal claim, such
as a breach of any employee statutory right or entitlement.
The Regulations provide that the standard three-step procedure will apply in
cases where an employee is aggrieved about an action taken by his employer
and where the employee asserts this was taken wholly or mainly by reason of
something other than his/her conduct or capability. The types of actions
covered include warnings, either written or verbal, investigatory suspensions
and those actions giving rise to constructive dismissals, but will exclude all other
dismissals. The purpose here is to deal with all issues that arise, even where they
are part of the standard disciplinary procedure, and also require employees to
raise any matter which could possibly lead to a claim of constructive dismissal
being made against the employer, before proceeding to an Employment
Tribunal.
The standard three step procedure will apply in all cases where the employee
remains in the employ of the employer. It will also apply in most cases where
the employee is no longer in the employ of the employer. There are, however,
some exceptions to this rule. These are where:
a) The employer was not aware of the grievance before the employment
ended;
b) If the employer was aware, the standard grievance procedure had not
started, or had not been completed by the time the employment had
ended; and
c) The parties have agreed in writing that the modified, rather than the
standard grievance procedure, applies.
Step 1 The employee sets down in writing the nature of the grievance and
sends the complaint to the employer.
Step 2 The employer must then set out his or her response in writing and
send it to the employee.
However, the GPs will apply if the employee feels that the employer is unlaw-
fully discriminating against them by raising conduct or capability issues.
The parties will be treated as having complied with the GP requirements in cases
where:
The following steps apply to both GP procedures and Disciplinary and Dismissal
Procedures (DDPs):
• Meetings must allow both the employee and the employer to explain
their case.
• The role and rights of the representative in GPs is the same as that
set out in Chapter 5, under the section The disciplinary hearing, which
dealt with DDPs.
Note: these exemptions are intended to cover both violence, and the
threats of violence to either party, or the party’s property, or any person
or person’s property.
In any subsequent tribunal case, the tribunal may adjust any award made to
the detriment of any party that was found responsible for the procedures not
being started or completed because of a significant threat, or unreasonable delay.
If the employee’s representative cannot reasonably attend any meeting, then the
employer must propose an alternative date within five days of the originally
proposed date. The employer is only obliged to rearrange the meeting on one
occasion. If the second meeting falls through for unforeseen reasons, then fault
will not be attributed to either party and the procedure will be deemed to have
been complied with.
Overlapping disputes
The Employment Act 2002 deals separately with disciplinary and grievance proce-
dures, but often at the workplace there is no clear distinction between the two.
The Regulations therefore lay down what is required to be done in the circum-
stances where the two types of procedure overlap.
5. If, however, the employee raises this, or a grievance, before the appeal
stage of the DDP has been reached, he or she will be treated as having
complied with the requirements of the GP. If the matter is not, however,
raised before the DDP appeal stage has been completed, then the GP
will be required to commence from One Stage if the required
procedures are to be seen to have been complied with.
Whilst most employers separate out their disciplinary and grievance procedures
this will not be required for the statutory procedures. Under the Regulations
both letters and meetings under the statutory procedures can be multi purpose.
So for instance, an employer writing to invite an employee to a Two Step meeting
in relation to one disciplinary issue, could use the same letter as the One Step
letter in relation to another disciplinary matter.
Admissibility Grievances
If an employee wishes to submit a claim to an Employment Tribunal based on
a grievance with their employer, or ex- employer, he/she must first write a One
Step letter and allow 28 days to elapse or the complaint will not be admitted.
Once this condition has been met the employee will be able to bring the claim.
If the procedures have not been completed, as the result of action or in action
on the part of either party, then any resultant award may be adjusted upward
or downward as the tribunal considers appropriate.
Where the employee sends a One Step letter to the employer, under the GP within
the normal time limit for presenting an application to an Employment Tribunal,
this will trigger an automatic three month extension of the time limit from the
date when it would otherwise have expired. It will not be necessary for either
party to have contacted a tribunal for this trigger to be effective.
Chapter 9
Appeals
The right of appeal ............................................................................105
Chapter 9
Appeals
By far the largest majority of unfair dismissal claims lost at Employment Tribunal
by employers are caused by procedural faults. Rarely does a tribunal find that
the employer did not prove a reason that satisfied the requirements of statute
to justify the dismissal. The failure is, more often than not, one of a procedural
deficiency. The employee was not treated in a manner that the tribunal believed
to be reasonable and hence ‘fair’. There were flaws in the way that manage-
ment dealt with the issue that disadvantaged the employee and meant that they
did not receive a fair hearing before they were dismissed. It has long been the
practice at Employment Tribunal to find a dismissal that did not allow a right
of appeal, or where other aspects of the procedure were flawed to be branded
as ‘unfair’.
Both statutory DDPs and the GPs state at the conclusion of Stage Two that the
employer must:
• …notify the employee of the right to appeal against the decision if the
employee is not satisfied.
This squarely places the onus on the employer to notify the employee of their
right to appeal, a failure to do so will almost certainly render any resultant
dismissal potentially ‘unfair’.
• If the employee does wish to appeal, he or she must inform the employer.
• If the employee informs the employer of his or her wish to appeal, the
employer must invite the employee to attend a meeting.
• The employee must take all reasonable steps to attend the meeting.
• After the appeal meeting the employer must inform the employee of
his final decision.
The employer would be well advised to confirm notification of the right of appeal
to the employee in writing, including it in the letter notifying the employee of
the outcome of any Stage Two meeting. Note: The employee is required to notify
the employer if he or she does wish to exercise the right of appeal. Silence on
the part of the employee can reasonably be concluded as an intention not to
exercise the right. No further action is then required on the part of the employer.
An employee who chooses not to appeal against a decision reached as a result
of the operation of either a DDP or GP and who later succeeds with a tribunal
claim might well find his or her compensation reduced under the provisions of
the Employment Act 2002.
b) The statutory procedure was not completed before the proceedings were
begun and
Similarly where the failure to complete the procedure is due to a fault on the
part of the employer the statute states:
it (the tribunal) must, subject to subsection (4), increase any award that
it makes to the employee by 10%, and may, if it considers it just and
equitable in all the circumstances to do so, increase it by a further amount,
but not so as to make a total amount of more than 50%.
The importance of the appeal stage of both the DDP and GP procedure is made
evident by this section of the Act. It can prove expensive to either party to fail
to exercise, or complete this essential step.
A limit should be set on the period of time in which an appeal can be lodged –
five working days is enough in normal circumstances.
When scheduling the appeal hearing, the rights of the employee’s representa-
tive need to be taken into account. Where the chosen representative cannot attend
on the scheduled date and time chosen by the employer, an alternative time must
be agreed – no longer than five working days from the previously selected date
– for the rearranged hearing. Working days in this context relate to the normal
working days of the employee/s concerned. Alternative arrangements may be
necessary within all stages of the procedures, depending on the nature of work
and the work pattern undertaken, to accommodate shift workers.
Where a belief exists in the mind of the manager hearing the appeal that the
original decision might be flawed on the grounds of an inadequate, or improper
interpretation of the procedure or practice followed in the original hearing/s,
it may be sensible for them to use the appeal hearing to rerun the disciplinary
or grievance hearing from scratch. In this way any procedural defects that may
have occurred in the earlier stages of the procedure can be rectified.
Unless this is the case, the manager or director hearing the appeal should confine
the hearing to the grounds on which the appeal has been lodged. It is not enough
for the employee to say that they simply disagree with the outcome of the disci-
plinary or grievance being appealed. The manager must fully explore the thinking
behind any such assertion, and be seen to consider and explore this before
reaching any final decision. It may be necessary to recall witnesses, or hear
fresh witnesses who did not appear at early meetings, where their evidence is
relevant to the matter under review, or review or introduce fresh documenta-
tion as necessary.
Records of any appeal hearing should be agreed and exchanged between the
parties and the manager should confirm the outcome of the appeal in writing
to the employee concerned, with a copy being sent to the representative.
Appendices
Appendix I Example of disciplinary rules and procedure ........110
This is a model set of rules which include a disciplinary procedure, appeal proce-
dure and guidance notes for employees. It has been developed for employees at
a clinical practice and as such the terminology reflects this.
Preamble
The Company requires the highest standards of conduct and performance from
all employees as they perform their duties as laid down in their statement of
terms and particulars of employment, and any related documentation.
It may be appropriate to deal with breaches of the standards laid down in the
employment documentation by informal action, before resorting to the formal
procedure. Although such informal warnings may be confirmed in writing, they
will not be used during the formal disciplinary process. An example of miscon-
duct dealt with in this way might be minor timekeeping violations.
From time to time, it may be necessary for the Company to take formal disci-
plinary action against an employee. The reasons for disciplinary action may
include:
Note: This list is not intended to be exhaustive, but merely provides examples
of the types of behaviour considered as inappropriate.
5. The employee must confirm that they will be attending the hearing,
and notify the chair if they will be accompanied, and if so, by whom.
The employee must also notify the chair in advance of any witnesses
who will be called by him or her.
6. At the hearing, the employee will hear the allegations from the
investigating manager and be given the opportunity to state his or her
case before any decision is reached.
Suspension
Note: Suspension is not a disciplinary sanction.
Sanctions
An employee who is proven to have committed a first breach of the discipli-
nary standards will be given a formal written warning.
Each formal warning will remain valid for a minimum period of six months, unless
stated otherwise. The written confirmation of the warning will state:
If the employee commits a further act of misconduct during the ‘life’ of the first
warning, s/he will be given a final written warning, following a further formal
hearing, unless this further incident constitutes gross misconduct.
A final written warning will remain valid for a minimum period of 12 months,
but may in certain circumstances be for a longer period. Any period that is longer
than 12 months will be notified to the employee in the copy of the final written
warning.
Note:
1. A final warning given at this stage cannot be used to support a dismissal
for further misconduct without a further disciplinary hearing first taking
place, and the right of appeal being offered to the employee.
Appeals
Employees may appeal against any formal disciplinary decision taken at a formal
hearing. The appeal must be made in writing, to the Director concerned, within
five working days of receiving the disciplinary decision.
If the employee has been dismissed, they should contact their former manager
to invite any witnesses and/or a companion who is a former fellow company
employee. The ex-employee will be given a minimum of three working days’
notice, from the day that the company reasonably anticipates that they will receive
the invitation, to enable them to prepare for the appeal hearing.
The ex-employee must confirm that they will be attending the appeal hearing,
and notify the chair if they will be accompanied, and if so, by whom. The ex-
employee must also notify the chair in advance of any fresh witnesses whom
they wish to call.
The outcome of the appeal will be confirmed in writing. There is only one level
of appeal.
Notes of meetings
For all formal meetings held under this procedure, the Company will arrange
for summary notes to be taken and copied to all parties. Any differences in recol-
lection of the meetings events will be recorded in writing and appended to the
disciplinary notes provided that these are notified to the company within five
working days of the notes being circulated.
Role of a companion
It will be the employee’s responsibility to organise his or her accompaniment.
If the employee is suspended, or otherwise forbidden from contacting other
employees, and wishes to be accompanied by a fellow employee, the request
for accompaniment must be made via the suspending manager.
The employee must follow the same process if he or she wishes any employees
who are witnesses to attend.
A companion may:
However, they cannot answer questions put to the employee by the chair of
the meeting.
Confidentiality
All documents and proceedings associated in any way with any part of the disci-
plinary process must remain completely confidential at all times. Any employee,
witness, companion etc who breaches this rule may themselves be the subject
of disciplinary action.
Gross misconduct
The following list is not exhaustive, but gives examples of offences which consti-
tute gross misconduct:
• Gross negligence.
Grievance procedure
It is the spirit and intention of this procedure that managers will make every
effort to resolve any grievance drawn to their attention by any employee as quickly
as possible.
Initially, all parties should attempt to resolve issues informally wherever possible.
Where this is not possible, this procedure provides that an employee who has
a ‘personal grievance’ shall have the opportunity to discuss the matter with
management, and to be accompanied by a fellow employee or a Trade Union
Officer/Professional Body Representative during all formal stages of the
procedure. All parties involved in the grievance should observe confidentiality
at all times.
Any hearing under the formal procedure may be deferred by up to five working
days if the chosen companion is unavailable to attend on the proposed hearing
date.
‘An official complaint by an employee about action that the Company has
taken, or is contemplating taking in relation to him/her, about a duty owed
to the employee by the Company from statute or the employment contract.’
• Work relations
• Working practices
• Working environment
• Organizational change
• Equal opportunities
If the grievance is against your line manager, or regarding sexual or racial discrim-
ination, bullying or victimisation of any nature you should contact, or write to
a more senior manager, or a Director.
The procedure below will be followed for all grievances raised during your
employment, while you remain employed by the Company.
Informal stage
If you have a grievance, you should discuss this in the first instance with your
immediate manager or supervisor (always subject to the comments above
regarding the nature of your grievance). You should aim wherever possible to
settle grievances informally with your immediate manager or supervisor.
Stage one
If the grievance is not resolved informally, and you wish to take the matter further,
you should raise it formally in writing with your Manager. Such action will then
be classified as a Formal Grievance and a hearing will be arranged.
You must submit all Formal Grievances in writing. At the grievance hearing,
you will be asked to state clearly how you wish the grievance to be settled. You
may therefore wish to include this in your formal written submission.
You will have the right at the hearing to be accompanied by a fellow employee
or a Trade Union Officer/Professional Body Representative, which it will be your
responsibility to arrange.
You, or the manager, may call witnesses if they are able to assist with the settle-
ment of the grievance.
After the hearing, you will receive a written response to your grievance within
five working days.
Stage two
If the matter is still not settled to your satisfaction after Stage One, and you wish
to pursue the matter further, you may make a written request for an appeal hearing
with a manager or director senior to the person who has dealt with the matter
at Stage One.
Your request should give as much information as possible and should attach a
copy of the letter you received after Stage One.
The request should be sent to the Director within five working days of you
receiving the decision from the Stage One hearing. Following the appeal hearing,
you will normally receive a written response within five working days.
Note: Appeals against any disciplinary penalty should be pursued through the
appeal stages of the disciplinary procedure and not through the grievance proce-
dure (except potentially for informal warnings where there is no right of appeal).
If you wish to raise a grievance about any matter that is not related to current
disciplinary action, the grievance procedure will commence at Stage One.
However, the grievance procedure cannot be used simply to provide a further
level of appeal against a disciplinary penalty or decision.
It is the duty of all managers to ensure that the Company’s policy on harass-
ment and bullying is known by all staff, and that it is implemented fully in each
location.
Note: The above are examples and are not meant to be an exhaustive list.
Harassment/bullying procedure
It is recognised that, in some cases, a complaint may be of a sensitive and confi-
dential nature. Each instance will therefore be handled according to the
individual circumstances. Management recognise that there may be two
distinct approaches to dealing with the issues raised – by adopting either an
informal or a formal procedure.
The use of the ‘informal’ procedure does not mean that the complaint will be
viewed less seriously by the Company; rather that the aim is to stop the harass-
ment quickly and to prevent any re-occurrence.
As soon as any complaint has been made to a company manager, using either
the informal or formal procedure, it will be investigated as a matter of urgency.
Informal procedure
If an employee considers that he or she is being harassed or bullied then they
should, if possible, inform the instigator that the behaviour is unwanted and/or
offensive. A timely written request that the behaviour is unacceptable may be
effective and stop the conduct.
Where possible, the employee should keep notes and, if possible, record in a
diary each occasion the unacceptable behaviour that has occurred, and what
actually happened, including times and locations of the event/s.
If the behaviour does not cease, then the employee should speak to his/her
manager who will consider what action to take based upon the complainant’s
wishes. If the alleged harasser is the employee’s line manager, the employee should
contact a more senior manager, or a Director of the Company.
There may be scope under the informal procedure for the manager to speak to
the alleged harasser and advise him/her of the nature of their conduct and explain
why it is unacceptable to the employee and the company. If the action continues,
or if it is not deemed to be appropriate to deal with the matter on an informal
basis, then formal action will be required.
Formal procedure
The complainant should put into writing his/her complaint to his/her line manager.
If the alleged harasser is the employee’s line manager, the employee should write
to a senior manager or a Company Director. As much detail as possible should
be given, and include:
The receiving manager should immediately inform the Director of the allega-
tion, and set up an urgent confidential meeting with the complainant to explore
the allegation/s fully.
The receiving manager should ensure that a thorough investigation of the allega-
tion/s is undertaken, including speaking to the alleged harasser. Consideration
should be given to the possibility of suspending the alleged harasser (on pay)
pending further investigation, or moving one or both of the parties, to ensure
that there is no immediate further opportunity for harassment.
The alleged harasser has the right to be accompanied at all stages by a fellow
employee or Trade Union Officer/Professional Body Representative.
Following the investigation, a report will be prepared advising what action (if
any) is to be taken. If disciplinary action is to follow, the alleged harasser will
be provided with copies of all documentation upon which the company will rely
at the hearing. The disciplinary hearing should then be convened in accordance
with the normal Disciplinary Procedure.
Note: If at the initial hearing, the accused admits to the allegation, but
convinces the manager that there will be NO future re-occurrence, then the
Company may decide not to take disciplinary action but instead, send a letter
to confirm this, warning of the likely outcome of any re-offence.
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MANAGEMENT AND PERSONAL DEVELOPMENT
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