The consultant appealed against the sanction. Employers should not interpret this decision as giving them permission to take expired disciplinary warnings into account in all cases. Grievances should be used to bring issues to the employer's attention for the matter to be investigated and resolved fairly. In one case, Kay v Cheadle Royal Healthcare Ltd t/a Affinity Healthcare (2012), the claimant was a deputy ward nurse manager in a ward for patients with mental health problems. If an employee appeals against a disciplinary decision, the general rules of fairness and natural justice should be applied during the appeal hearing. You can appeal if you do not agree with your employers decision. Whatever topic you need to explore, find our latest and most relevant resources, guides, case studies, viewpoints and research evidence. Issues employers need to consider when contemplating dismissal in such circumstances are: Is there an express term in the contract or the disciplinary policy governing misconduct outside the workplace? Either way, it must include: The name of a person the employee should contact about any grievances at work. Employers should follow their disciplinary procedures to the letter. Any decisions to suspend or dismiss must be taken by that specified manager. The Employment Appeal Tribunal (EAT) held that the employees request to be accompanied by a particular companion does not have to be reasonable. The EAT has also held that a resignation letter is sufficient to initiate the statutory grievance process provided the grievance is set out in writing. Workers have the right to be accompanied at a disciplinary appeal hearing by a work colleague or a trade union representative. The employees accepted the other companions, but later claimed that their right to be accompanied had been breached. HR should be clear in emails and meetings that they will give advice on procedure and not their opinion on whether an employee is guilty. an employee (or worker) can choose one of two types of trade union official or a work colleague. This may not be possible in smaller workplaces. The allegedly similar situations must be truly similar for inconsistent treatment alone to make a dismissal unfair. If employers are in doubt whether the Acas code applies, then it is probably safer and good practice to follow it anyway, because employment tribunals can adjust any award made by up to 25% if there has been a failure to comply with the code when it is applicable. it appears that the HR department went too far. While on full sick pay from the NHS she did private patient work, for which she was disciplined by the Trust. The EAT concluded that HR had gone beyond advising on issues of procedure and appropriate sanctions which was the proper extent of its involvement. The actual findings on culpability and sanction should be decided by the manager. An employer must conduct its own full and thorough investigation, which may include suspension, in relation to an employee facing criminal charges. when dismissing the employee. However, the Court of Appeal dismissed the appeal and confirmed that the dismissal was fair; the tribunal was entitled to find that the council rightfully considered the final written warning when it made the decision to dismiss. There may also be a companion invited by the employee. Must a disciplinary procedure be completed before issuing a warning or a suspension? Find out about the Energy Bills Support Scheme, Redundancies, dismissals and disciplinaries, Acass step-by-step guide to formal grievance procedures, Acas code of practice on disciplinary and grievance procedures, View a printable version of the whole guide. Allow the employee to set out their case, call any witnesses and answer any allegations. There is no absolute obligation on employers to suspend the disciplinary procedure - employers can exercise their discretion. Khans unfair dismissal claim failed. The key issue was whether the employer should have analysed every single journey made by the employee and the purported reasons for the additional mileage. Following HRs involvement, the managers belief changed from thinking that any excessive expenses. The most important provisions governing discipline and grievances at work are found in the Employment Act 2008 and Employment Tribunals (Constitution and Rules of Procedure) (Amendment) Regulations 2008. Interview the alleged harasser confidentially and keep a record of that. and the employee is accompanied to meetings and hearings with other companions. Follow up Action 9. Review and Modification, if Need be 10. Conduct that occurs outside of the workplace can justify a dismissal. Effective ways of handling Employee Grievance observed five key actions to deal with a workplace grievance.1) Initiate the grievance procedure 2) Investigate the grievance 3) Hold a grievance . The employer only interfered with the choice. Compensation for breach of the right to be accompanied is normally capped at two weeks pay. Whatever stage you are in your career, we have a range of HR and L&D courses and qualifications to help you progress through your career in the people profession. Was it reasonable to identify this group of employees as capable of committing the conduct complained of? When deciding to dismiss employers should confirm to the employee an explanation of the mitigating factors they have considered and why these were insufficient to avoid the gross misconduct dismissal. and credit card misuse were not deliberate and that the employee had given plausible reasons for this (which would have resulted in a final written warning), to a belief that the employee had misused the employers credit card, which resulted in his dismissal for gross misconduct. such as employees, who are to refer to company internal grievance standard. Grievance procedure. An investigation should be looked at in its entirety when assessing the question of reasonableness. For more information, see Acass step-by-step guide to formal grievance procedures. In fact, it is almost always. Encouraging the use of mediation to resolve disputes where appropriate. An employer should deal with a bullying complaint by following the organisations grievance process with respect to the bullying and the disciplinary and dismissal process with respect to the employee who is alleged to be the perpetrator. The companion is there to support the employee, whereas witnesses have seen or heard something relevant to the dispute. It will take only 2 minutes to fill in. Where two or more employees are suspected of misconduct and the employer, despite investigation, cannot discover who is to blame, it may be fair to dismiss several employees in relation to the same incident on the grounds of a reasonable suspicion (, The EAT has set out five principles for employers faced with the prospect of multiple dismissals (, Parr v Whitbread plc t/a Threshers Wine Merchants, 1990. The employees accepted the other companions, but later claimed that their right to be accompanied had been breached. Employers must not use expired warnings to dismiss employees for something which on its own would not justify dismissal. Roles in Grievance Handling . The tribunal did not have to consider whether the final warning was a nullity. Where possible, the person who handles the grievance . The employer cannot insist on a work colleague it prefers (see Toal v GB Oils Ltd, 2013). Dismissal will not always be considered to be fair and fall within the band of reasonable responses because there has been gross misconduct. We also use cookies set by other sites to help us deliver content from their services. What is the previous disciplinary record and length of service of the employee? However, the employer may voluntarily allow the employee to be accompanied by a lawyer if the employee wishes to instruct one. has made it clear that the behaviour will be unacceptable in the future, then a dismissal may still be fair even if there is apparent inconsistency. If there is a case to answer, the employer must hold a meeting with the employee to discuss the problem. It can also help foster trust since having a written grievance procedure encourages employees to raise concerns without fear of workplace retaliation. The employer should keep a careful written record including the nature of the grievance, what was decided and actions taken, the reason for the actions, whether an appeal was lodged, and any subsequent developments. 3. A current written warning for a previous incident can be taken into account by employers in deciding whether to dismiss. British Home Stores Ltd v Burchell (1978). Can an employee choose any companion for a disciplinary hearing? You should remind them they can also raise the grievance formally. However, the secret recording from the device left in the room during the private deliberations of the panel were not admissible as evidence. Employees and, where appropriate, There is no statutory right to insist on family members being present if the employer does not agree. However, the employer did not believe his behaviour would ever change and decided to terminate his employment immediately. any secret recording of private discussions of an employers disciplinary panel when the employee is no longer in the room will not be admissible. Make a decision, then take appropriate action: This may not. Case law confirms that refusing a choice of a companion for a disciplinary investigation can be a breach of the implied term of trust and confidence. Can action be taken against employees when its not clear who was at fault? The employee should be told of a specified period after which the warning will be disregarded and that failure to improve, within the set period following a final warning, may result in dismissal or some other penalty such as demotion. Consistency is very important but just because an employer treats employees slightly differently, this will not automatically mean any subsequent dismissal is unfair. Grievance handling is the management of employee dissatisfaction or complaints (e.g. Most organisations will have existing policies which do comply with the Acas code. At the start of meetings, it is common to request that mobile phones, or any other portable devices, are switched off and that employees should remove all their belongings from the hearing room during an adjournment. in deciding to dismiss. These are the 5 steps: Informal Action. However, if you do, you must follow the procedure, or the employee could bring a breach of contract claim against you. If the employer reasonably believed the conduct occurred and followed the Acas code of practice on disciplinary and grievance procedures then the dismissal will be fair, even if the employee subsequently proves they did not do whatever the employer thought they did.
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