Managing disputes: the procedures in detail

dismissal of an employee, on grounds including capability, conduct, redundancy, non-renewal of a fixed-term contract (assuming one year's qualifying service), and compulsory retirement before retirement age

l any other disciplinary action other than suspension on full pay or a warning - eg, demotion, loss of pay, loss of seniority, suspension on no or reduced pay.

When do we not have to follow this procedure?

For collective redundancies covered by the duty to consult under section 188 of the Trade Union and Labour Relations (Consolidation) Act 1992

For industrial action dismissals

For dismissals where the employer's business suddenly ceases to function, eg, following a fire

For dismissals where the employee is covered by a dismissal procedures agreement under Section 110 of the Employment Rights Act 1996

Where any party has been harassed (subject to an intimidating, hostile, degrading or humiliating environment) and reasonably believes the procedures may result in further harassment

Where there are issues of national security involved.

When do we need to commence this procedure?

you were entitled to so dismiss, and

l it was reasonable to do so without investigation.

When do we not need to follow this procedure?

Where any party has been harassed and reasonably believes the procedures may result in further harassment

Where there are issues of national security involved.

When should the employee commence this procedure?

Where an employee wishes to complain about actions taken by colleagues and the employer fails to address the issue

Where the employee wishes to make a claim to an industrial tribunal.

When do we not have to follow this procedure?

Where, after termination, it becomes not reasonably practicable for any party to comply with the remainder of the standard procedure (treated as compliance)

Where the employer has dismissed or is contemplating dismissal or disciplinary action on the basis of conduct or capability. in this case the appropriate disciplinary/dismissal procedure will apply

Where an alternative, collectively agreed grievance procedure exists and the employee has raised his or her grievance using that procedure (treated as compliance)

Where any party has been harassed and reasonably believes the procedures may result in further harassment (exemption)

Where issues of national security are involved (exemption).

* NB - an exemption means there can be no extension of the tribunal time limits (see below) for any subsequent claim; treated as compliance means the extended time limits may apply if the relevant conditions are met.

When should the employee commence this procedure?

Where it would be unreasonable to expect the parties to follow the standard procedure, including attending meetings, because there is no ongoing employment relationship and the parties have no interest in following the procedures, and there is mutual agreement on this.

When do we not have to follow this procedure?

Where any party reasonably believes there is a significant threat to any person or property (exemption)

Where there are issues of national security involved (exemption).

How do we ensure we conduct all the procedures adequately?

The law says: Each step and action must be taken without unreasonable delay.

Acas says: The length of time between written notification and meeting should be long enough to allow the worker to prepare, but not so long that memories fade. It is useful to set a time limit for asking for an appeal - five working days is usually enough. Five days is normally about right for responding to an employee's grievance.

The law says: Timing and location of meetings must be reasonable.

Acas says: Agree time and location with employees where possible. Meetings should be held in as private a location as possible and where you can be sure there will be no interruptions.

The law says: Meetings must allow both the employer and employee to explain their cases.

Acas says: The employer/employee should explain the complaint and go through the evidence briefly on which the disciplinary action/grievance is based. The employee should be allowed to ask questions, present evidence, call witnesses, and question witnesses used by the employer.

The law says: At appeal meetings the employer should, as far as is reasonably practicable, be represented by a more senior manager than attended the first meeting.

Acas says: In small organisations, even if a more senior manager is not available, another manager should hear the appeal if possible. If that is not an option, the person overseeing the case should act as impartially as possible. In large organisations, it is good practice to allow a further appeal to a higher level of management such as a director.

The law says: The employee can choose to be accompanied to the step-two meeting and/or the step-three appeal by a colleague or trade union representative.

Acas says: Remind the worker of this right in both the step-one disciplinary procedure letter and the appeal letter. If the companion cannot make the suggested date for a meeting, the worker can put forward another date that must suit everybody, not more than five days after the original date.

The law says: Reasonable adjustments should be made for disabled employees involved in a statutory procedure to ensure they are not disadvantaged.

Acas says: Employers should always bear in mind that the law expects them to be more tolerant of workers who are absent because of a disability. They should consider the provisions of the Disability Discrimination Act 1995 to avoid claims of discrimination over the way discipline and grievance are handled.

What do we have to do to inform employees of their rights and duties under the procedures?

All firms are required to give all employees a written statement of employment particulars within the first two months of their employment. The statement must set out all aspects of the dismissal and disciplinary procedure. This can be given in the employment contract or in a letter of engagement.

The nature of this statement may be considered by a tribunal considering a claim and if it is found to be inadequate, the tribunal can award compensation of two or four weeks' pay at its own discretion.

What happens if the statutory dismissal and disciplinary procedures are not followed?

Employment tribunals MUST increase or decrease compensation by 10 per cent, and can do so by up to 50 per cent, if one of the parties fails to follow the statutory procedures - unless that party is exempt or is to be treated under the regulations as having fully complied (see above).

Where one party fails to comply with any part of a procedure, the tribunal will normally attribute the failure of the procedure to them, and neither party is then obliged to continue with the procedure. However, where the procedures have been abandoned because of fear of violence or harassment from the other party, the latter will be held responsible for the failure to comply, and awards will be adjusted against them by between 10 and 50 per cent. In the case of any other exemptions or where the parties are treated as having complied (see above), there will not generally be any adjustment of awards.

If you dismiss an employee without completing the statutory dismissal and disciplinary procedure, and the failure is attributed to you, a tribunal will find that dismissal to be automatically unfair and the claimant will receive at least four weeks' pay in compensation. Where the disciplinary and dismissal procedure is not completed because of a failure on the employee's part, such as not attending a pre-arranged meeting, their award will be reduced by between 10 and 50 per cent. Where the dismissal procedure is not completed properly because of harassment by you or one of your other employees, the dismissal will be held to be automatically unfair.

What happens if the statutory grievance procedures are not complied with?

If an employee wishes to submit an employment tribunal claim based on a grievance, that complaint will not be admitted unless he or she has written a step one letter to you under the statutory grievance procedure and waited 28 days for a reply (unless he or she is exempt from the procedures or to be treated as having complied - see above).

If the grievance procedures as a whole are not completed, the award will be subject to adjustment of between 10 and 50 per cent as for the disciplinary procedures, depending who is at fault.

In what circumstances will tribunals extend the time limits to allow the procedures to be followed?

In certain circumstances, the normal time limits for submitting tribunal claims (in most cases three months from the date of the act complained of) will be extended to allow time for workplace discussions to take place (see Figure 2).

Where the employee has reasonable grounds for believing a disciplinary procedure is still ongoing at the point where the normal time limit runs out, the time limit will be extended for three more months.

Where the employee presents a tribunal application arising from a grievance, but that application is not admitted because he or she has not written the Step 1 letter under the grievance procedure, there will be an automatic three-month extension running from the original expiry date. The claimant has 28 days from the original expiry date to send the Step 1 letter.

If the employee sends the Step 1 letter under the grievance procedure within the normal tribunal time limit, this will also trigger a three-month extension which will run from the original expiry date.

These time limit extensions will not apply in cases where the employer or employee is exempt from the procedures (see above).

What happens when one of the parties cannot get to a meeting?

If the employer, the employee or the employee's companion cannot reasonably attend a Step 2 or appeal meeting for a reason that was not reasonably foreseeable at the time the meeting was arranged, the meeting must be rescheduled. If the meeting falls through a second time, the obligation to continue with the statutory procedures will cease, but no blame will be attributed by a tribunal. The parties will be treated as having complied so the time limit extension may still apply (as above).

Where one party's failure to attend was reasonably foreseeable, neither party need continue with the statutory procedure and the tribunal may attribute responsibility for the failure of the procedures and adjust any award.

What happens where there is more than one issue involved - for instance, both disciplinary and grievance issues, or multiple grievance issues?

Where dismissal is involved, the onus is on you to initiate the appropriate disciplinary and dismissal procedure and any grievances should be raised as part of this procedure.

If you take action on grounds other than conduct or capability, there is no obligation to start the disciplinary and dismissal procedures, and the employee can use the grievance procedure if dissatisfied.

If you take disciplinary action on the basis of conduct or capability, the standard dismissal and disciplinary procedure must be followed and the grievance procedures will not normally apply. If, however, the employee thinks the action is unlawfully discriminatory or is really being taken for reasons other than conduct and capability, such as personality issues, the grievance procedure will kick in.

As long as the employee submits a written grievance before the appeal meeting of the dismissal and disciplinary procedure, he or she will have fulfilled the conditions for having any later claim being admitted to an employment tribunal.

If the employee submits a written grievance during or after the disciplinary appeal meeting, the grievance procedure will have to be completed in full (see Figure 3).

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