Managing disputes: glossary
Section 9 of the Personnel Today Management Resources one stop guide on managing disputes. Other sections.
Acas
Official advice, conciliation and arbitration service for workplace disputes.
Acas code
The Acas Code of Practice on Disciplinary and Grievance Procedures, which has been updated to include guidance on new statutory disciplinary and grievance procedures (see below).
Alternative dispute resolution
Where an independent third party gets involved to help settle a dispute between employer/manager and worker - main types are arbitration, conciliation, mediation or a combination of these.
Arbitration
Voluntary scheme run by Acas that provides alternative to tribunal route for resolving unfair dismissal and flexible working disputes. Parties agree to adjudication by an independent arbitrator who decides on the case based on general principles of fairness rather than legal principles. Decision is binding. Parties generally waive rights to appeal.
Burchell test
Legal test used by tribunals to decide if employer acted reasonably in conduct dismissal. It asks:
whether the employer believed that the employee was guilty of misconduct
whether it had reasonable grounds for that belief
whether at the stage it formed that belief it had carried out as much investigation into the matter as was reasonable in the circumstances.
Capability
Potentially fair reason for dismissal, defined in the Employment Rights Act 1996 as the skill, aptitude, health or any other physical or mental quality necessary to do the job. It also includes qualifications meaning any degree, diploma, or other academic, technical or professional qualification relevant to the worker's position.
Compromise agreement
An agreement to settle a tribunal dispute, reached by direct negotiation between the parties, which is legally binding provided they have taken prescribed independent advice.
Conciliation
Service offered to both parties in a dispute where an independent third party helps parties to negotiate directly or via representatives to reach a settlement. Conciliation settlements made through Acas or directly based on independent legal advice are enforceable. Resolution is reached by parties, not imposed or suggested by third party.
Constructive dismissal
An employee resigns following a dispute, but is entitled to be regarded as having been unfairly dismissed because the employer has breached the employment contract so seriously it entitled the employee to regard the contract as terminated.
COT3
A legally binding settlement agreement reached between the parties in a tribunal case with the intervention of Acas conciliators.
Disciplinary policy
Written rules that set out an employer's standards in terms of performance and conduct. It helps workers know where they stand and what is expected of them, and helps employers deal fairly and consistently with those who fall short.
Disclosure
Where parties to a tribunal case produce and serve to the tribunal a list of documents relevant to the case in their control or possession, or those they had a right to take possession of, inspect or take copies of. These are then open to inspection by the other party.
Early neutral evaluation
Where an independent, impartial observer studies a dispute and all the evidence to give both parties an early and frank evaluation of the merits of a case.
Fair reasons for dismissal
One of the reasons stated in section 98 (2) of the Employment Rights Act 1996 as being a potentially fair reason for dismissal: these are:
capability or qualifications
conduct
redundancy
statutory requirements
'some other substantial reason'.
Fixed-period conciliation
Set period - either 13 weeks or fast-track period of seven weeks - during which Acas has a duty to conciliate between parties following a tribunal claim. It will conciliate outside the fixed period only in very limited circumstances.
Grievance
A complaint by an employee about action which his employer has taken or is contemplating taking in relation to him, or actions for which the employer is liable, such as harassment by colleagues.
Grievance procedure
Formal procedure whereby employees can report grievances to employers.
Gross misconduct
Serious breaches of company rules on behaviour that may result in dismissal without notice.
Hearing
Meeting under a disciplinary or grievance procedure at which the employee has the right to be accompanied by a companion, either a fellow worker or trade union representative.
Informal action
Off-the-record, unwritten procedure recommended by Acas to deal with cases of minor misconduct or poor performance before invoking formal disciplinary action.
Mediation
Form of dispute resolution in which an internal or external independent third party facilitates discussion and negotiation between the disputing parties and steers themtowards resolving the dispute informally.
Statutory procedure employers must follow after they have dismissed someone without warning for gross misconduct.
Modified grievance procedure
Statutory procedure employees must follow if they have left the company or been dismissed and wish to make a formal complaint about the employer with a view to bringing a claim at an employment tribunal. Employer must respond or face higher costs.
Notice of appearance
IT3 form which allows employer to set out its response or defence to a tribunal application (IT1). Must be returned within 21 days of receipt of IT1.
Pre-hearing review
Where tribunal reviews claims to weed out cases with little chance of success. Weak claims can be struck out, or tribunal can charge claimant a deposit and order costs if employee goes ahead with case against advice.
Privilege
Legal term that allows employers to refuse to disclose documents because they are confidential - covers legal correspondence, and correspondence without prejudice sent with the intention of agreeing a settlement.
Range of reasonable responses test
Legal test used by tribunals to decide if employer acted fairly in dismissing employee for a particular reason. Tribunal asks if the dismissal was within the range of reasonable responses open to the employer at the time - that it was not irrational or perverse.
Right to be accompanied
A worker's right to be accompanied at disciplinary and grievance hearings by a fellow worker or trade union representative, who can contribute to the meeting but not answer questions for the worker.
Standard dismissal and disciplinary procedure
Statutory procedure introduced by the Employment Act 2002 which an employer must follow when contemplating dismissal or any other disciplinary action other than suspension on full pay or a formal warning.
Standard grievance procedure
Standard procedure introduced by the Employment Act 2002 which an employer must provide for employees and employees must follow if they wish to raise a formal complaint with a view to bringing a tribunal claim.
Summary dismissal
Immediate dismissal without notice, for serious or gross misconduct.
Unfair dismissal
Dismissal which is unlawful because it is not for a fair reason, the employer did not follow a fair disciplinary procedure, or because the employer acted unreasonably in all the circumstances in dismissing the employee.
Verbal warning
Non-written but formal stage in a best practice disciplinary procedure, informing employee of nature of complaint against him or her, improvement required and timescale for improvement. Usually includes warning that failure to improve could result in written warning.
Written warning
Stage in best-practice disciplinary procedure where employer writes to employee setting out the nature of the misconduct or poor performance, the improvement required and the timescale for improvement. If first written warning, warns that failure to improve or repetition of conduct could lead to final written warning; if final written warning, that it could lead to dismissal. Acas recommends warnings should be wiped from disciplinary records after a specified period such as 12 months.
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Section 1: Introduction |
