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Summary
Future developments
Action point checklist
Key referencesv
Questions and answers
Disciplinary rules and procedures overview
Written statement of terms and conditions of employment
Acas code of practice on disciplinary and grievance procedures
Drawing up and communicating disciplinary rules
Summary dismissal
Disciplinary procedures
Dealing with absence
Dealing with poor performance
Criminal charges or convictions outside employment
The disciplinary procedure in operation
Appeals
A worker's right to be accompanied at disciplinary hearings
Sample disciplinary procedure
(Repealed) statutory minimum dismissal and disciplinary procedures

Summary

3.262

• The statutory dispute resolution procedures were abolished on 6 April 2009, and a revised "Acas code of practice on disciplinary and grievance procedures" was introduced. An employment tribunal may increase or decrease awards of compensation by up to 25% in the event of an unreasonable failure to comply with the code. (See 3.264 Disciplinary rules and procedures)
• The written statement of terms and conditions of employment issued to every new employee must include certain information relating to disciplinary rules and procedures. (See 3.265 Written statement of terms and conditions of employment) v
• The "Acas code of practice on disciplinary and grievance procedures" is designed to assist employers, employees and their representatives in dealing with disciplinary situations in the workplace including misconduct and/or poor performance. (See 3.266 Acas code of practice on disciplinary and grievance procedures)
• Disciplinary rules should be set down in writing, and be specific and clear. (See 3.267 Drawing up and communicating disciplinary rules)
• Employers should ensure that they give a clear indication of the types of conduct that will be considered to constitute gross misconduct. (See 3.268 Summary dismissal)
• A disciplinary procedure should be regarded primarily as a means of helping and encouraging improvement amongst employees whose conduct or performance is unsatisfactory, rather than a means of imposing sanctions. (See 3.269 Disciplinary procedures)
• A distinction should be made between absences caused by ill health and those clearly calling for disciplinary action, and between poor performance due to an inherent inability to function and that due to the employee's own carelessness, negligence or idleness. (See 3.270 Dealing with absence and 3.271 Dealing with poor performance)
• Criminal convictions or charges pending against an employee should not be treated as an automatic reason for dismissal. (See 3.272 Criminal charges or convictions outside employment)
• A typical disciplinary procedure will consist of a first oral or written warning, a final written warning and dismissal or some other sanction. (See 3.273 The disciplinary procedure in operation)
• It is important that employees have the opportunity to appeal against any disciplinary decision made against them. (See 3.274 Appeals)
• The right to be accompanied at each of the formal stages of a disciplinary procedure extends to all workers and not just employees. (See 3.275 A worker's right to be accompanied at disciplinary hearings)
• The repealed statutory dismissal and disciplinary procedures continue to apply in specified circumstances. (See 3.277 (Repealed) statutory minimum dismissal and disciplinary procedures)

Future developments

3.263 There are no future developments.

Disciplinary rules and procedures overview

3.264 Repeal of statutory dispute resolution procedures: The statutory dispute resolution procedures were introduced on 1 October 2004 in the hope that they would encourage resolution of disputes in the workplace without recourse to an employment tribunal. A failure on the employer's part to follow the dismissal and disciplinary procedures rendered a dismissal automatically unfair, and permitted the employment tribunal to increase compensation by between 10% and 50% (while a failure by the employee could result in a corresponding decrease).

However, the statutory dispute resolution procedures were criticised for formalising disputes at an early stage, increasing the administrative burden on employers, and prioritising procedure over the achievement of a fair outcome. They were repealed on 6 April 2009 by the Employment Act 2008.

Revised Acas code of practice on disciplinary and grievance procedures: Employers are now expected to comply with the principles set out in the revised Acas code of practice on disciplinary and grievance procedures (PDF format, 1.58MB) (on the Acas website) when handling disciplinary situations. The code, which came into force on 6 April 2009, provides basic practical guidance to employers, employees and their representatives. It was issued under s.199 of the Trade Union and Labour Relations (Consolidation) Act 1992, and a tribunal is required to take it into account when considering relevant cases. Where there has been an unreasonable failure by either party to comply with the code the tribunal may increase or decrease compensation by up to 25%, depending on which party is at fault. A failure to follow the code will not, by itself, render an employer liable to legal proceedings (see 3.266 Acas code of practice on disciplinary and grievance procedures).

Transitional provisions: Although the statutory dispute resolution procedures were repealed on 6 April 2009, they continue to apply in prescribed circumstances. Under transitional provisions set out in the Employment Act 2008 (Commencement No.1, Transitional Provisions and Savings) Order 2008 (SI 2008/3232), the repeal of the statutory procedures (and related repeals and amendments) does not apply where, before 6 April 2009, the employer has, by virtue of reg.3 of the Employment Act 2002 (Dispute Resolution) Regulations 2004 (SI 2004/752):

• complied with the requirements of para.1, 2 or 4 of sch.2 to the Employment Act 2002 (step one of the standard dismissal and disciplinary procedure, step two of the standard procedure and step one of the modified procedure) (see 3.277 (Repealed) statutory minimum dismissal and disciplinary procedures);
• taken relevant disciplinary action against the employee (ie action short of dismissal that the employer asserts to be based wholly or mainly on the employee's conduct or capability, other than suspension on full pay or the issue of oral or written warnings); or
• dismissed the employee.

For these purposes, the employer will be treated as having complied with para.1 of sch.2 where it has set out in writing the employee's alleged conduct or characteristics, or other circumstances, that lead it to contemplate dismissing or taking disciplinary action against him or her, and sent the statement, or a copy of it, to the employee. The employer will be treated as having complied with para.2 of sch.2 where the employee attends a meeting with the employer and the employer informs the employee that it is contemplating dismissing or taking disciplinary action against him or her. The employer will be treated as having complied with para.4 of sch.2 where it has set out in writing the alleged misconduct that led to the employee's dismissal, and the basis for thinking at the time of the dismissal that he or she was guilty of the alleged misconduct, and sent the statement, or a copy of it, to the employee.

Procedural unfairness in unfair dismissal: The repeal of the statutory dispute resolution procedures affected the rules on procedural fairness in unfair dismissal. On 6 April 2009, the Employment Act 2008 repealed s.98A of the Employment Rights Act 1996 returning the law on procedural fairness to that in existence prior to the introduction of the statutory dispute resolution procedures in October 2004. This means that procedural failings will normally render a dismissal unfair, but compensation can be reduced in proportion to the likelihood that the dismissal would have occurred had a fair procedure been followed.

Written statement of terms and conditions of employment

3.265 Under ss.1 to 3 of the Employment Rights Act 1996, employees have the legal right to be issued with a written statement explaining the principal terms and conditions of their employment. The statement may be incorporated in a letter of engagement or contract of employment so long as the document contains the particulars required by ss.1 to 3.

The statement of terms and conditions must contain a note specifying:

• any disciplinary rules applicable to the employee or referring the employee to the provisions of a document specifying such rules that is reasonably accessible to the employee;
• any procedure applicable to the taking of disciplinary decisions relating to the employee, or to a decision to dismiss the employee, or referring the employee to the provisions of a document specifying such a procedure that is reasonably accessible to the employee; and
• the person to whom the employee can apply if dissatisfied with any disciplinary decision relating to him or her or any decision to dismiss him or her and the manner in which any such application should be made.

Where there are further steps consequent on any such application the note must explain these or refer to the provisions of a document that gives an explanation and is reasonably accessible.

The requirements do not apply to rules, disciplinary decisions, decisions to dismiss or procedures relating to health and safety at work.

Acas code of practice on disciplinary and grievance procedures

3.266 A revised Acas code of practice on disciplinary and grievance procedures (PDF format, 1.58MB) (on the Acas website) came into effect on 6 April 2009. The code is designed to help employers, employees and their representatives deal with disciplinary situations in the workplace including misconduct and/or poor performance.

A failure to follow any part of the code is not actionable of itself. However, a failure is admissible in evidence in proceedings before an employment tribunal and will be taken into account by the tribunal when considering a relevant case, for example when determining the fairness or otherwise of an employer's decision to dismiss an employee. Where there has been an unreasonable failure to comply with the code the tribunal may increase or decrease compensation by up to 25%.

The potential for this adjustment in compensation arises where the tribunal proceedings relate to a claim under any of the jurisdictions listed in sch.A2 to the Trade Union and Labour Relations (Consolidation) Act. These are:

• s.2 of the Equal Pay Act 1970 (equality clauses);
• s.63 of the Sex Discrimination Act 1975 (discrimination in the employment field);
• s.54 of the Race Relations Act 1976 (discrimination in the employment field);
• s.145A of the Trade Union and Labour Relations (Consolidation) Act 1992 (inducements relating to union membership or activities);
• s.145B of the Trade Union and Labour Relations (Consolidation) Act 1992 (inducements relating to collective bargaining);
• s.146 of the Trade Union and Labour Relations (Consolidation) Act 1992 (detriment in relation to trade union membership and activities);
• para.156 of sch.A1 to the Trade Union and Labour Relations (Consolidation) Act 1992 (detriment in relation to union recognition rights);
• s.17A of the Disability Discrimination Act 1995 (discrimination in the employment field);
• s.23 of the Employment Rights Act 1996 (unauthorised deductions and payments);
• s.48 of the Employment Rights Act 1996 (detriment in employment);
• s.111 of the Employment Rights Act 1996 (unfair dismissal);
• s.163 of the Employment Rights Act 1996 (redundancy payments);
• s.24 of the National Minimum Wage Act 1998 (detriment in relation to national minimum wage);
• The Employment Tribunal Extension of Jurisdiction (England and Wales) Order 1994 (SI 1994/1623) (breach of employment contract and termination);
• The Employment Tribunal Extension of Jurisdiction (Scotland) Order 1994 (SI 1994/1624) (corresponding provision for Scotland);
• reg.30 of the Working Time Regulations 1998 (SI 1998/1833) (breach of the Regulations);
• reg.32 of the Transnational Information and Consultation of Employees Regulations 1999 (SI 1999/3323) (detriment relating to European Works Councils);
• reg.28 of the Employment Equality (Sexual Orientation) Regulations 2003 (SI 2003/1661) (discrimination in the employment field);
• reg.28 of the Employment Equality (Religion or Belief) Regulations 2003 (SI 2003/1660) (discrimination in the employment field);
• reg.45 of the European Public Limited-Liability Company Regulations 2004 (SI 2004/2326) (detriment in employment);
• reg.33 of the Information and Consultation of Employees Regulations 2004 (SI 2004/3426) (detriment in employment);
• para.8 of the Schedule to the Occupational and Personal Pension Schemes (Consultation by Employers and Miscellaneous Amendment) Regulations 2006 (SI 2006/349) (detriment in employment);
• reg.36 of the Employment Equality (Age) Regulations 2006 (SI 2006/1031) (detriment in employment);
• reg.34 of the European Cooperative Society (Involvement of Employees) Regulations 2006 (SI 2006/2059) (detriment in relation to involvement in a European Cooperative Society);
• reg.51 of the Companies (Cross-Border Mergers) Regulations 2007 (SI 2007/2974) (detriment in relation to special negotiating body or employee participation); and
• reg.17 of the Cross-border Railways Services (Working Time) Regulations 2008 (SI 2008/1660) (breach of the Regulations)

The code identifies six principles as fundamental to the issue of fairness when dealing with a disciplinary situation:

• Employers should raise and deal with issues promptly and should not unreasonably delay meetings, decisions or confirmation of those decisions.
• Employers should act consistently.
• Employers should carry out any necessary investigations, to establish the facts of the case.
• Employers should inform employees of the basis of the problem and give them an opportunity to put their case in response before any decisions are made.
• Employers should allow employees to be accompanied at any formal disciplinary meeting.
• Employers should allow employees to appeal against any formal decision made.

The code identifies six key stages when an employer is dealing with a disciplinary situation:

• Establish the facts of the case. This will involve carrying out the necessary investigations.
• Inform the employee of the problem. The employer should provide the employee with a written notice containing sufficient information about the allegations against him or her and the possible consequences to enable the employee to prepare to answer the case at a disciplinary meeting.
• Hold a meeting to discuss the problem. At the meeting, the employer should explain the complaint against the employee, and the employee should be allowed to set out his or her case and answer any allegations that have been made.
• Allow the employee to be accompanied at the meeting.
• Decide on appropriate action. After the meeting the employer should decide whether or not disciplinary or any other action is justified and inform the employee accordingly in writing.
• Provide the employee with an opportunity to appeal. Where the employee appeals, the employer should inform the employee in writing of the results of the appeal as soon as possible after the appeal hearing.

The code is supported by Discipline and grievances at work: Acas guide (PDF format, 898K) (on the Acas website). The guide provides more detailed advice on dealing with disciplinary situations. Unlike the code, it does not have statutory force, and tribunals are not required to have regard to it when considering relevant cases. However, tribunals are likely to consider the guide when interpreting the code.

Drawing up and communicating disciplinary rules

3.267 The responsibility for maintaining discipline within the workplace rests with managers and supervisors. If disciplinary rules are to be effective, they must be accepted as reasonable both by those to whom they apply and by those whose responsibility it is to enforce them. In Laws Stores Ltd v Oliphant [1978] IRLR 251 EAT, the Employment Appeal Tribunal (EAT) held that a supermarket manager had acted wholly unreasonably when he summarily dismissed one of his cashiers for failing to record the purchase of a single jar of coffee. Although there was no suggestion that the employee had acted dishonestly, the company had adhered to its own strict rule (made known to all of its employees) that a failure to observe correct till procedure would result in instant dismissal. There was a similar outcome in Ladbroke Racing Ltd v Arnott and others [1979] IRLR 192 EAT, in which a betting shop employee was dismissed for placing a bet for a pensioner, contrary to a rule forbidding employees to place bets while on the company's premises. In that case, the EAT commented that rules that clearly warn of the inevitability of dismissal for certain offences must still be interpreted sensibly and fairly.

The revised Acas code of practice on disciplinary and grievance procedures (PDF format, 1.58MB) (on the Acas website) states that fairness and transparency are promoted by developing and using rules and procedures for handling disciplinary matters, and that these rules and procedures should be set down in writing, and be specific and clear. The code goes on to state that: "Employees, and where appropriate, their representatives should be involved in the development of rules and procedures. It is also important to help employees and managers understand what the rules and procedures are, where they can be found and how they are to be used."

Disciplinary rules should cover issues such as misconduct, substandard performance (where not covered by a separate capability procedure), harassment or victimisation, misuse of company facilities including computer facilities (eg email and the internet), poor timekeeping, unauthorised absence and repeated or serious failure to follow instructions. They should be readily available to all employees, in the written statement of terms and conditions of employment issued to every employee, in the staff handbook or on the company intranet. Management should make every effort to ensure that all employees, including those whose first language is not English and those who have trouble reading, understand the rules. Induction training programmes for new recruits should provide a forum for discussion of the importance of complying with the rules and the possible consequences if they fail to do so.

An employer's disciplinary rules should be tailored to the needs of the business and to legislation affecting that business. For example, hoteliers and caterers should take into account the consequences if they or their employees fail to comply with their duties and responsibilities under the Food Safety Act 1990 and associated legislation. Publicans may forfeit their licence if they ignore their obligations under the Licensing Act 2003, and employers in the chemical and pharmaceutical industries are liable to prosecution and fines if they fail to observe the strictures imposed by the Control of Substances Hazardous to Health Regulations 2002 (SI 2002/2677).

Summary dismissal

3.268 Employees should be made aware of the likely consequences of breaking their employer's disciplinary rules. In particular, the revised Acas code of practice on disciplinary and grievance procedures (PDF format, 1.58MB) (on the Acas website) states that they should be given a clear indication of the type of conduct, usually referred to as "gross misconduct", that is so serious a breach of an employee's contractual obligations as to warrant summary dismissal (ie dismissal without notice). Paragraphs 22 to 23 of the code state that what an employer regards as gross misconduct will vary according to the nature of the organisation and what it does. Employers should decide according to their own individual circumstances what constitutes gross misconduct, but behaviour likely to fall within this category includes:

• theft, fraud and deliberate falsification of records;
• disclosure of company documents, trade secrets and other confidential information to unauthorised third parties;
• physical violence or bullying;
• unlawful discrimination or harassment;
• deliberate damage to property;
• gross insubordination;
• drunkenness or the consumption of alcohol while on duty;
• the use or distribution of illegal drugs while on the company's premises;
• indecency;
• bringing the employer into serious disrepute; and
• intentional and reckless disregard for safety and hygiene rules.

However, the term "summary dismissal" should not be taken literally. Allegations of gross misconduct will usually still need to be investigated before a decision to dismiss is taken. An employee should be afforded an opportunity to answer the allegations levelled against him or her and, where necessary (for example if the employer considers that there are risks to its property or other parties), should be suspended on full pay while those allegations are investigated.

Disciplinary procedures

3.269 An employer's disciplinary procedure should be regarded primarily as a means of helping and encouraging improvement amongst employees whose conduct or performance is unsatisfactory, rather than a means of imposing sanctions. Discipline and grievances at work: Acas guide (PDF format, 898K) (on the Acas website) states that: "[A disciplinary procedure] provides a method of dealing with any apparent shortcomings in conduct or performance and can help an employee to become effective again. The procedure should be fair, effective and consistently applied." Minor cases of misconduct and most cases of poor performance may be best dealt with informally (eg through advice, coaching and counselling) before a decision is taken to invoke the formal disciplinary procedure. An oral warning, putting the employee on notice that a repetition could lead to disciplinary action and, ultimately, dismissal, may be sufficient to resolve the problem.

If the formal disciplinary procedure is to be invoked, the employee should be informed in advance of the allegations that have been made against him or her, together with any evidence in support of them, and be given an opportunity to challenge the allegations and supporting evidence before a decision is reached. He or she should also be given the right of appeal against any decision taken.

A good disciplinary procedure should:

• be in writing;
• specify to whom it applies;
• be non-discriminatory;
• provide for matters to be dealt with without undue delay;
• provide for proceedings, witness statements and records to be kept confidential;
• indicate the disciplinary action that may be taken (eg a brief period of suspension without pay, demotion, a cut in pay, or a transfer to another department);
• specify which levels of management have the authority to take the various forms of disciplinary action;
• provide for employees to be informed of the complaints against them and the supporting evidence before any hearing;
• provide employees with an opportunity to state their case before any decision is reached;
• remind workers of their statutory right to be accompanied at the formal stages of the disciplinary procedure;
• ensure that, except for gross misconduct, no employee is dismissed for a first breach of discipline;
• ensure that disciplinary action is not taken until the case has been carefully investigated;
• ensure that employees are given an explanation for any penalty imposed; and
• provide a right of appeal against any decision.

Dealing with absence

3.270 When dealing with problems associated with absence, a distinction should always be made between absences occasioned by ill health or injury (supported by medical certificates) and those that clearly call for disciplinary action (eg malingering or unauthorised absence). All unexpected absences should be investigated promptly and an explanation of the absence requested. Where it appears that there is no acceptable reason for the absence, the matter should be treated as a conduct issue and dealt with under the disciplinary procedure. Appendix four of Discipline and grievances at work: Acas guide (PDF format, 898K) (on the Acas website) provides further guidance on how to handle short- and long-term absences and the failure by an employee to return from extended leave.

Where the absence is due to a medically certified illness, the issue becomes one of capability. In such cases employers should take into account the likelihood of an improvement in the employee's health and subsequent attendance; the availability of suitable alternative work; the effect of the absence on the organisation; how similar situations have been handled in the past; and whether or not the employee's illness is a result of a disability (in which case, employers should take into account their obligations under the Disability Discrimination Act 1995).

Dealing with poor performance

3.271 An employee's substandard performance is not always attributable to laziness, negligence or lack of application. If the reason for it is found to be a lack of the necessary skills, the employer should provide appropriate advice, training and close supervision to enable the employee to reach the required standard, before a decision is taken to dismiss. In Sutton & Gates (Luton) Ltd v Boxall [1978] IRLR 486 EAT, the Employment Appeal Tribunal emphasised that an employer must take care to distinguish between incompetence due to an inherent inability to function and the situation where a poor work record is due to the employee's own carelessness, negligence or idleness. A failure to perform to the required standard should be dealt with through the normal disciplinary procedure (when there is evidence of negligence or lack of application) or through a separate capability procedure (if the employee is genuinely incapable of achieving the required standard).

The revised Acas code of practice on disciplinary and grievance procedures (PDF format, 1.58MB) (on the Acas website) covers poor performance. The code states that: "If employers have a separate capability procedure they may prefer to address performance issues under [that] procedure. If so, however, the basic principles of fairness set out in [the] code should still be followed, albeit that they may need to be adapted."

Criminal charges or convictions outside employment

3.272 An employer may wish to dismiss an employee because he or she has been charged with, or convicted of, a criminal offence that occurred outside the workplace. Dismissal is permissible provided that the conduct complained of could be thought likely to affect the continued employment relationship.

When such dismissals are contemplated, employers should consider the approach set out in para.30 of the revised Acas code of practice on disciplinary and grievance procedures (PDF format, 1.58MB) (on the Acas website). This states that the fact that an employee has been charged with or convicted of a criminal offence not related to work is not normally in itself a reason for disciplinary action. Consideration should be given to what effect the charge or conviction has on the employee's suitability to do the job and the employee's relationship with his or her employer, work colleagues and customers. The offences most likely to impact on the employment relationship are those involving dishonesty, violence or inappropriate sexual behaviour.

In each case, the employer, having considered the facts, will need to decide whether or not the conduct is sufficiently serious to warrant instituting its disciplinary procedure. Workers should not be dismissed solely because they are absent as a result of being remanded in custody or because a charge against them is pending.

The disciplinary procedure in operation

3.273 The revised Acas code of practice on disciplinary and grievance procedures (PDF format, 1.58MB) (on the Acas website) states that where misconduct is confirmed or the employee is found to be performing unsatisfactorily it is usual to give the employee a written warning, with a further act of misconduct or failure to improve performance within a set period normally resulting in a final written warning. Where the employee's initial misconduct or unsatisfactory performance is sufficiently serious, it may be appropriate to move directly to a final written warning.

Formal verbal or written warning: In the case of minor infringements of the employer's disciplinary rules, a formal oral warning should be given. The employer should advise the employee of the reason for the warning, that it constitutes the first step of the disciplinary procedure and of his or her right of appeal. A note (date, time, content, etc) should be kept but should be disregarded for disciplinary purposes after a specified period, eg six months.

In the case of a more serious infringement, a formal written warning should be given. This should give details of the complaint, the improvement or change in behaviour required, the timescale allowed for this, the employee's right of appeal, and whether or not a final written warning may be considered if there is no sustained improvement or change. A copy should be kept but should be disregarded for disciplinary purposes after a specified period, eg six months.

Final written warning: If the formal oral or written warning proves to be ineffective and there is no perceptible improvement in the employee's conduct or performance during the period specified in that initial warning, or where the infringement is sufficiently serious, the employee should normally be given a final written warning. This should detail the nature of the misconduct in question (or evidence of a continuing deterioration in performance); specify the time limits within which improvements are to be effected; caution the employee that he or she is liable to be dismissed if there is no measurable improvement; and remind the employee of his or her right to appeal. A copy should be kept but should normally be disregarded for disciplinary purposes after a specified period, eg 12 months.

Dismissal or other sanction: If the final written warning has not had the desired effect, the final step might be disciplinary transfer, a period of suspension without pay, loss of seniority, a cut in pay, forfeiture of the next incremental payment (where these penalties are allowed for in the employment contract) or dismissal. A decision to dismiss should be taken only by the appropriate designated senior manager or director and should be relayed to the employee in writing as soon as is reasonably practicable. The letter should specify the reasons for the dismissal, the date on which the dismissal is to take effect, and the appropriate period of notice (or pay in lieu of notice). It should also remind the employee of his or her right of appeal.

Expired warnings: In Diosynth Limited v Thomson [2006] IRLR 284 CS, the Court of Session held that it was unreasonable for the employer to take into account an expired disciplinary warning in deciding what penalty should be imposed, and the Employment Appeal Tribunal in Airbus UK v Webb EAT/0453/06 followed this approach, stating that an employment tribunal is obliged to ignore expired disciplinary warnings when determining the fairness of a dismissal. However, the Court of Appeal overturned this decision, holding that, although it did not doubt the correctness of the decision in Diosynth, the case was not authority for the wide proposition that an expired warning can never be taken into account when an employer is deciding whether or not to dismiss for misconduct. The facts in Webb could be distinguished from those in Diosynth. In Diosynth, the expired warning had tipped the balance in favour of dismissal, as the other factors taken together would not have justified dismissal - it was the principal reason for dismissal. In Webb, the employer had shown that the subsequent misconduct on its own was the principal reason for dismissal, and its response was reasonable in the circumstances (Airbus UK Ltd v Webb [2008] IRLR 309 CA).

Appeals

3.274 The opportunity for employees to appeal against any disciplinary sanction, including dismissal, is a requirement of the revised Acas code of practice on disciplinary and grievance procedures (PDF format, 1.58MB) (on the Acas website) and essential to natural justice. An employee may appeal on a variety of grounds, for example the severity of the penalty imposed, procedural irregularities or his or her perceived unfairness of the judgment.

A timescale for the lodging and hearing of appeals should be set. This may vary between organisations but para.25 of the code states that "appeals should be heard without unreasonable delay".

The appeal should be dealt with impartially, and wherever possible, by a manager who has not previously been involved with the case. Where possible, this should be a more senior manager than the one who took the disciplinary decision. Where new evidence arises during the appeal, the employee should be given the opportunity to comment on this before any action is taken. It may be appropriate to adjourn the appeal to consider any new evidence that arises.

The employer should inform the employee in writing of the result of the appeal and the reasons for its decision as soon as possible after it has reached it. Where the decision constitutes the final stage of the organisation's appeal procedure the employee should be made aware of this fact.

A worker's right to be accompanied at disciplinary hearings

3.275 Under s.10 of the Employment Relations Act 1999, workers have the statutory right to be accompanied at any formal disciplinary or grievance hearing. For the purposes of s.10, a disciplinary hearing is one that could result in the worker being issued with a formal warning, penalised in some other way or dismissed, or in the confirmation of the warning issued or the action taken. The right to be accompanied applies to any disciplinary meeting, including an appeal hearing, held as part of a disciplinary procedure.

The companion may be a fellow worker, a full-time trade union official, or a lay trade union official certified by the union as having experience of, or having received training in, acting as a companion at disciplinary and grievance hearings. The request for a companion must be "reasonable". Paragraph 15 of the revised Acas code of practice on disciplinary and grievance procedures (PDF format, 1.58MB) (on the Acas website) states that it would not normally be reasonable for a worker to insist on being accompanied by a colleague whose presence would prejudice the hearing. Nor would it be reasonable for a worker to request to be accompanied by a worker from a geographically remote location where someone suitable and qualified was available on site. The statutory right to be accompanied does not extend to legal representation. However, in R (on the application of G) v Governors of X School and Y City Council [2009] IRLR 434 HC, the High Court held that an employee should have been allowed to be accompanied by a lawyer at a disciplinary hearing in circumstances where a consequence of the hearing could be the addition of his name to the register of individuals deemed unsuitable to work with children. The Court of Appeal has now held that a doctor should be allowed to be accompanied by a lawyer at a disciplinary hearing in circumstances where he or she is facing charges that are of such gravity that, in the event they are proven, he or she will effectively be barred from employment in the NHS (Kulkarni v Milton Keynes Hospital NHS Foundation Trust and another [2009] EWCA Civ 789 CA).

If the worker's chosen companion is unavailable to attend on the date or at the time originally set for the hearing, the employer must postpone the meeting to another date and time proposed by the worker within five working days of the date proposed by the employer. If the companion is not available within this time, the worker must choose another companion or attend without one.

Where an employer fails to permit a worker to be accompanied at a disciplinary or grievance hearing or to postpone the meeting in the circumstances described above this may prompt a complaint to an employment tribunal and an award of up to two weeks' pay.

A worker who has agreed to accompany a fellow worker at a disciplinary or grievance hearing has the right to be paid for the time off work to do so.

The companion has the right to address the hearing to put the worker's case, sum up the case and respond on the worker's behalf to any view expressed at the hearing. He or she may also confer with the worker during the hearing. However, the employer is not required to permit the companion to answer questions on behalf of the worker or address the hearing where the worker indicates that he or she does not wish the companion to do so. In addition the companion may not use his or her rights to address the hearing and confer with the worker in a way that prevents the employer explaining its case or any other person making his or her contribution to the hearing.

A worker may not lawfully be dismissed or subjected to any other detriment for exercising, or proposing to exercise, his or her statutory right to be accompanied, or to accompany another worker, at the formal stages of any disciplinary or grievance hearing (s.12 of the Employment Relations Act 1999).

In London Underground Ltd v Ferenc-Batchelor; Harding v London Underground Ltd [2003] IRLR 252 EAT, the Employment Appeal Tribunal ruled that an "informal" warning will be regarded as a "formal" warning if it has the characteristics of a formal warning, regardless of how it is described by the employer. In this instance the employee was asked to attend a meeting that could result in what the employer's disciplinary procedure called an "informal oral warning" being issued. The warning would be confirmed in writing, continue to have effect for a specified period of time, be part of the worker's disciplinary record and be taken into account in the event of a similar offence: for the purposes of triggering the right to be accompanied it was therefore a formal warning.

Sample disciplinary procedure

3.276 Company policy: As an employee of the company, you are expected to carry out your duties efficiently and safely; to cooperate with your managers and supervisors; to adhere to agreed start and finish times; not to take time off work without good reason or prior agreement; not to indulge in disruptive or antisocial behaviour; and to be courteous and considerate in your dealings with fellow workers, customers and clients. You should do nothing calculated to undermine or damage the company's reputation or business dealings, and must not disclose to unauthorised third parties any information concerning the company's activities or marketing strategies, pricing policy or trade secrets. You must not misuse or abuse the facilities and equipment at your disposal (eg by downloading offensive or inappropriate material from the internet, by sending or relaying unacceptable email messages to fellow employees or persons outside the organisation, or by making or receiving private telephone calls when you should be attending to your duties). The above examples are not exhaustive. If you are in any doubt as to whether your action might contravene company policy, you should check with [your manager/HR].

The Company's disciplinary policy is based on the principle that no business can be managed effectively unless staff and managers alike carry out their duties to the best of their abilities, obey the rules and comply with established codes of conduct and behaviour. If you fail to meet the requirements of your job - in terms of your conduct, attitude or performance - your manager or supervisor will explain your shortcomings to you, listen to what you have to say, and, where appropriate, ensure that you receive as much training, advice and encouragement as is necessary to help you improve. This approach will normally resolve most difficulties and misunderstandings. However, there will be times when a more formal approach is needed. Unless your conduct is so serious or damaging as to warrant summary dismissal (please consult the sections on Reasons for Dismissal and Summary Dismissal in your staff handbook for further information), the following procedure will apply.

In serious cases, and where appropriate, the company reserves the right to suspend you from your duties for up to [five] days to carry out an investigation into the allegations against you. During this time, you should remain away from the [office] but you will be paid in the usual way. You are reminded that you remain under the strict duty of fidelity as an employee and should not contact customers or other employees without prior permission during this suspension period.

Stage 1: First written warning: If, in spite of earlier informal warnings, counselling and advice, there has been no perceptible improvement in your attitude, conduct or performance, you will receive a letter explaining the nature of your continued misconduct or poor performance and inviting you to attend a formal disciplinary hearing to discuss these issues further. The letter will also advise you of your legal right to be accompanied at the hearing by a fellow worker of your own choosing, your shop steward or a full-time trade union official. Your chosen companion may address the meeting but may not answer questions on your behalf. If, at the end of the meeting, your manager or supervisor determines that your explanations are unacceptable, you will receive a first written warning (sent by the end of the next working day) cautioning you that, unless matters improve within a stated period, you will receive a final written warning, which, if disregarded, could lead to your being dismissed. The warning letter will also advise you of any agreed arrangements for counselling or further training. Should you wish to appeal against that warning, you must write to your manager or supervisor within the next five working days outlining the grounds for your appeal. Your appeal will be heard by your head of department within the ensuing five working days and the decision relayed to you in writing within the next three working days. You also have the right to be accompanied at the appeal hearing.

A copy of that first written warning (unless overturned on appeal) will be placed on your personal file - to be disregarded if your supervisor or head of department has no further occasion to speak to you about your conduct or performance within the next six months.

Stage 2: Final written warning: If, within the period specified in the first written warning, the company has had further occasion to caution you about your conduct or there has been no measurable sustained improvement in your performance (in spite of counselling, advice and further on-the-job training), you will be called to attend a second meeting chaired by the district manager in the presence of your head of department. The letter inviting you to that meeting will explain the nature of the allegations made against you and will once again remind you of your right to be accompanied.

If your explanations given at the meeting are unacceptable, the district manager will issue you with a final written warning by the end of the next working day. The warning will state why your explanations are unacceptable and will caution you that you are liable to be dismissed if there are any further instances of misconduct or failure to meet your performance targets. Should you wish to appeal against that warning, you must do so in writing to your head of department within the next three working days. The appeal hearing will take place within the next five working days and will be chaired by the HR manager or other uninvolved senior manager in the presence of the district manager and any person you have elected to accompany you at the hearing. The outcome of the appeal hearing will be relayed to you in writing within the next three working days.

A copy of that final written warning (unless overturned on appeal) will be placed on your personal file. The warning will be disregarded if the company has no further reason to discipline you within the next 12 months.

Stage 3: Dismissal: If the Stage 2 final written warning has not resulted in any improvement in your conduct or performance, you are liable to be dismissed. In that event, the following three-step procedure will apply.

Step 1: Your district manager will write to you explaining those aspects of your conduct or performance or any other circumstances that prompt the company to contemplate dismissing you. The district manager's letter will invite you to attend a meeting to discuss the matter in the presence of your immediate supervisor or manager, and will remind you of your right to be accompanied at the meeting by a fellow employee, shop steward or full-time trade union official. You must take all reasonable steps to attend the meeting, which will take place no sooner than three working days nor more than six working days after you receive the district manager's letter. This interval will allow you a reasonable opportunity to consider your response to the information contained in that letter before the meeting takes place. The meeting may be delayed by up to five working days if the person you wish to accompany you will not be available at the time first set for the meeting.

Step 2: After the meeting, you will be informed of the district manager's decision. If it has been decided that you will be dismissed, you will be sent written reasons for that decision and will be notified of your right of appeal and the procedure for doing so.

Step 3: If you decide not to appeal against your dismissal, you must notify your immediate manager or supervisor accordingly. If you do decide to appeal, you must write to the district manager informing him or her of that decision within the next five working days. You will then be invited to attend an appeal meeting with the managing director to take place within the next five working days (even if your dismissal has already taken effect). Again, you must take all reasonable steps to attend that meeting and may exercise your right to be accompanied at the appeal meeting by a fellow worker, shop steward or trade union official.

Within five working days of the appeal meeting, you will be informed in writing of the managing director's decision. If your appeal is upheld, you will be notified accordingly and will remain in your present job (if still serving out your notice) or will be reinstated in your original job, or one rated as equivalent (if your dismissal has already taken effect and your original job is no longer available) with your seniority, continuity of employment and other benefits intact. Any loss of pay between the time of your dismissal and reinstatement will also be made good.

Please note that if you present a complaint of unfair dismissal to an employment tribunal and do so without first having lodged an appeal against the company's decision to dismiss you, or if you fail to attend the appeal meeting after having appealed to the managing director, the law states that the amount of any compensation awarded to you by an employment tribunal may be reduced by up to 25%.

(Repealed) statutory minimum dismissal and disciplinary procedures

3.277 In 2004, part 3 of the Employment Act 2002 and the Employment Act 2002 (Dispute Resolution) Regulations 2004 (SI 2004/752) introduced a statutory dispute resolution regime. The statutory dismissal and disciplinary procedures applied where the employer was contemplating dismissing, or taking relevant disciplinary action against, an employee. The regime was repealed with effect from 6 April 2009. However, the statutory dismissal and disciplinary procedures continue to apply to dismissals where the employer began the dismissal procedure or dismissed the employee prior to 6 April 2009 (see 3.264 Disciplinary rules and procedures overview). For this reason, this section continues to set out the requirements of, and case law under, the statutory procedures.

Standard three-step dismissal and disciplinary procedure: Subject to certain exceptions, the standard three-step dismissal and disciplinary procedure must be followed when an employer is contemplating dismissing or taking relevant disciplinary action against an employee. This includes dismissal on grounds of conduct, capability, redundancy and non-renewal of a fixed-term contract, but not compulsory retirement dismissals.

Relevant disciplinary action is action short of dismissal, such as suspension without pay, a demotion, loss of seniority rights or a cut in pay, based wholly or mainly on an employee's conduct or capability, other than suspension on full pay or the issue of oral or written warnings. The employer need not initiate the standard three-step procedure before taking action short of dismissal against an employee if that action is not on grounds of conduct or capability.

The standard three-step dismissal and disciplinary procedure is as follows.

Step one: The employer must set out in writing the employee's alleged conduct or characteristics or other circumstances that lead it to contemplate dismissing or taking disciplinary action against the employee. The employer must then send the statement or a copy of it to the employee and invite the employee to attend a meeting to discuss the matter. Where the employer is contemplating dismissal the step-one letter must state that there is a risk of dismissal. If it omits to do so any resulting dismissal will be automatically unfair (Zimmer v Brezan EAT/0294/08). In Smith Knight Fay Ltd v McCoy EAT/0245/08, the Employment Appeal Tribunal (EAT) held that the phrase "action taken" in the standard dismissal and disciplinary procedure referred to the act of dismissal, not to the decision to dismiss. The employee, who had been told that he was being made redundant, and only then given a step-one letter and invited to a meeting, was therefore not automatically unfairly dismissed.

What is required under step one is a statement of the issue in broad terms, saying that the employee is at risk of dismissal and why, eg theft, dishonesty, lack of capability or redundancy.

Step two: The meeting must not take place unless the employer has informed the employee of the basis for including the given grounds in the initial statement. Once the employee has had a reasonable opportunity to consider his or her response to the information, the employer must hold a meeting to discuss the allegations and to consider the employee's response. The employee must take all reasonable steps to attend the meeting. After the meeting, the employer must write to the employee informing him or her of its decision and of the employee's right to appeal against that decision if dissatisfied with it.

In informing the employee of the basis for including the given grounds in the initial statement, the employer must provide sufficient detail to enable the employee to give his or her side of the case at the meeting. However, it is not required to provide all the evidence on which it intends to rely - Ingram v Bristol Street Parts EAT/0601/06.

Step three: If the employee decides to appeal, he or she must inform the employer accordingly. The employer must invite the employee to attend a further meeting, which the employee must take all reasonable steps to attend. After the appeal meeting, the employer must inform the employee of its final decision on the matter. The appeal meeting need not take place before the dismissal or disciplinary action takes effect.

If, due to unforeseen circumstances, it is not possible for the employee, employer or, where the employee is exercising his or her right to be accompanied, his or her chosen companion to attend a meeting organised under the statutory procedure, the meeting should be rescheduled. However, if the second meeting falls through for reasons that were unforeseeable at the time it was arranged, neither party will be under any further obligation under the procedure and both parties will be treated as having complied with the procedure. Where the employer has given unreasonably short notice or has employed an evidently unreliable means of communicating the date or time of the meeting, it is foreseeable that the employee may not receive the notice, and this requirement will not apply. Such a case will, however, be covered by the general requirement for the timing of a hearing to be reasonable (see General requirements applicable to both procedures) (Sovereign Business Integration plc v Trybus EAT/0107/07).

In Draper v Mears Ltd [2006] IRLR 869 EAT, the EAT held that a letter to an employee who was dismissed after being found in a company van, about to drive after having consumed alcohol, and which referred to "conduct which fails to reasonably ensure health and safety of oneself and others" satisfied step one of the statutory dismissal and disciplinary procedure. According to the EAT, the step-one letter need do no more than state the issue in broad terms. If the words of the step-one statement are ambiguous, the tribunal is entitled to look at the whole context and take into account whether or not the statement would have been seen by the employee as ambiguous or left him or her in any doubt. In this case the employee knew "full well" what the allegations against him were ahead of receiving the letter.

In YMCA Training v Stewart [2007] IRLR 185 EAT, the EAT held that, although an employer is permitted to notify an employee of the case against him or her in two stages - stating the alleged misconduct first and setting out the detail later (although in good time before the meeting) - it is not obliged to do so. The employer may state both the grounds for the contemplated action and the basis for those grounds at the same time. The EAT also held that, although in this case the allegations had been set out in a letter inviting the employee to an "investigatory hearing", rather than a "disciplinary hearing", this did not mean that the tribunal was entitled to disregard the letter. It was clear that the basis of the allegations had been set out in the letter, and that it had been provided sufficiently far in advance of the hearing for the employee to respond to the information at the hearing.

Modified two-step dismissal and disciplinary procedure: The dismissal of an employee without notice on grounds of gross misconduct will ordinarily be held to be unfair if the evidence before an employment tribunal reveals that the employer had not first informed the employee of the allegations made against him or her; had not thoroughly investigated those allegations; had not given the employee an opportunity to refute those allegations; and had denied the employee his or her right to appeal against its decision. An employer should, therefore, ordinarily follow the standard three-step dismissal and disciplinary procedure before summarily dismissing an employee for gross misconduct. However, reg.3(2) of the Employment Act 2002 (Dispute Resolution) Regulations 2004 (SI 2004/752) allows that a modified two-step dismissal procedure may be applied in those rare cases when an employer is arguably justified in summarily dismissing an employee, for example if the employee engages in serious misconduct in the presence of witnesses, with no likely explanation or mitigating circumstances.

The modified two-step dismissal procedure may be used only where:

• the employee was dismissed without notice on the basis of his or her conduct;
• the employee was dismissed when the employer became aware of the conduct or immediately after;
• the employer was entitled to dismiss for gross misconduct without notice or payment in lieu of notice; and
• it was reasonable for the employer to dismiss without first investigating the circumstances.

The scope of the modified disciplinary procedure is extremely limited: even a dismissal that takes place the day after alleged misconduct will not be considered to be "immediately afterwards" for the purposes of the modified procedure (O'Neil v Wooldridge Ecotech Ltd EAT/0282/07).

The modified, two-step dismissal and disciplinary procedure is as follows.

Step one: The employer must set out in writing the alleged misconduct that led to the dismissal, its basis for thinking at the time of the dismissal that the employee was guilty of the alleged misconduct, and the employee's right of appeal against dismissal. It must then send the statement or a copy of it to the employee.

Step two: If the employee wishes to appeal he or she must inform the employer. The employer must then invite the employee to attend an appeal hearing, which he or she must take all reasonable steps to attend. After the appeal meeting the employer must inform the employee of its final decision.

If, due to unforeseen circumstances, it is not possible for the employee, employer or, where the employee is exercising his or her right to be accompanied, his or her chosen companion to attend the appeal meeting, the meeting should be rescheduled. However, if the second meeting falls through for reasons that were unforeseeable at the time it was arranged, neither party will be under any further obligation under the procedure and both parties will be treated as having complied with the procedure. Where the employer has given unreasonably short notice or has employed an evidently unreliable means of communicating the date or time of the meeting, it is foreseeable that the employee may not receive the notice, and this requirement will not apply. Such a case will, however, be covered by the general requirement for the timing of a hearing to be reasonable (see below) (Sovereign Business Integration plc v Trybus EAT/0107/07).

General requirements applicable to both procedures: Each step and action of both the standard three-step and the modified two-step dismissal and disciplinary procedure must be taken without unreasonable delay. The timing and location of meetings must be reasonable and they must be conducted in a manner that enables both parties to explain their case. When an appeal meeting is called, the employer should normally be represented by a more senior manager than attended the first meeting.

In Sovereign Business Integration plc v Trybus EAT/0107/07, the EAT held that the timing of an appeal hearing was not reasonable. The employee had been sent a letter on 20 December, fixing an appeal meeting for 29 December. As the employer acknowledged that there might be a delay in delivery because of Christmas, it also sent a copy by email. The email was returned, indicating that the employee's inbox was full. The letter was not delivered until after Christmas, at which point he was away on holiday. Even if the letter could confidently have been expected to arrive on the first working day after Christmas - 28 December - this would have left the employee with barely 24 hours to prepare for the meeting.

Dismissals to which the dismissal and disciplinary procedures do not apply: Neither the standard nor the modified dismissal and disciplinary procedure applies where:

• all the employees of a description or in a category to which the employee belongs are dismissed, provided that their employer offers to re-engage all the employees either before or upon the termination of their contract;
• the employee is one of 20 or more employees to be made redundant at the same establishment within a period of 90 days or less (in which case, the employer is duty bound to consult the appropriate trade union or employee-elected representatives about those dismissals);
• at the time of the employee's dismissal he or she is taking part in an unofficial strike or other unofficial industrial action, or a strike or other industrial action that is neither unofficial industrial action nor protected industrial action, unless the circumstances of the dismissal are such that an employment tribunal is entitled to determine whether the dismissal was fair or unfair;
• the reason or principal reason for the dismissal is that the employee took protected industrial action and the dismissal would be regarded, by virtue of s.238A(2) of the Trade Union and Labour Relations Act 1992, as unfair for the purposes of part 10 of the Employment Rights Act 1996;
• the employer's business suddenly ceases to function because of an unforeseen event, for example the destruction of the employer's business premises by fire, with the result that it is impractical for the employer to continue to employ any employees;
• the reason or principal reason for the dismissal is that the employee could not continue to work in the position that he or she held without contravention, on either the employee's or the employer's part, of a duty or restriction imposed by or under any enactment; or
• at the time of the dismissal, the employee is covered by a dismissal procedures agreement designated by an order under s.110 of the Employment Rights Act 1996.

Although neither of the dismissal and disciplinary procedures applies to the dismissals listed above, the fairness of such dismissals may be challenged in the normal way before the employment tribunals.

Circumstances in which the parties are treated as complying with the statutory procedures: There are circumstances in which the parties to a workplace dispute will be treated in law as having complied with the standard three-step or the modified two-step disciplinary or dismissal procedure even if they have not in fact done so.

Interim relief: The parties to a dispute will be treated as having completed the relevant dismissal and disciplinary procedure if, before the appeal meeting, the employee lodges a claim for interim relief on the grounds that he or she has been unfairly dismissed because of his or her trade union membership or activities; for exercising, or proposing to exercise, his or her statutory functions or activities as an occupational pension scheme trustee, a trade union appointed or elected employee representative, a health and safety representative, a competent person designated to carry out health and safety activities or a workforce representative; or for supporting or opposing a union membership agreement.

This is because a claim for interim relief must be lodged with an employment tribunal within seven days of the effective date of termination of the employee's contract of employment. If the claim for interim relief is upheld, the employer will be ordered to reinstate or re-engage the employee or make an order for the continuation of the employee's contract of employment until the issue is finally resolved at a full tribunal hearing.

Appropriate procedure: If an appropriate procedure exists at the time of an employee's dismissal or the time that disciplinary action is taken, and the employee is entitled to appeal against that dismissal or the relevant disciplinary action, other than directly to the employer, the parties will be treated as having completed the appeal stage of the standard or modified procedure if the employee exercises his or her right of appeal under that other procedure. For these purposes, an appropriate procedure is a procedure that operates by virtue of a collective agreement made between two or more employers, or an employers' association, and one or more independent trade unions, and gives an employee covered by the agreement an effective right of appeal against dismissal or disciplinary action taken against him or her.

General circumstances in which the procedures do not apply: The relevant statutory dismissal and disciplinary procedure will not apply where the employer does not initiate it because:

• it has reasonable grounds for believing that commencing it would result in a significant threat to either the employer or another person, or to the employer's property or that of another person;
• harassment has occurred and it has reasonable grounds for believing that commencing the procedure would result in further harassment; or
• it is not practicable for it to commence it within a reasonable period because of, for example, long-term sickness or incapacity or the closure of the employer's business.

Where the employer has commenced the relevant procedure but does not comply with its subsequent requirements because of the circumstances outlined above the parties will be treated as having complied with the procedure.

Extension of time limits: Where an employee presents a claim to a tribunal under a jurisdiction listed in sch.3 or 4 of the Employment Act 2002, in certain circumstances the normal time limit for presenting the claim is extended for a period of three months beginning on the day after the day on which it would otherwise have expired. This will be the case where the employee presents a claim to a tribunal after the expiry of the normal time limit for the claim but had reasonable grounds for believing when the time limit expired that a dismissal or disciplinary procedure, whether statutory or not, was being followed in respect of matters connected to the claim (reg.15 of the Employment Act 2002 (Dispute Resolution) Regulations 2004).

The applicable jurisdictions are the:

• s.2 of the Equal Pay Act 1970 (equality clauses);
• s.63 of the Sex Discrimination Act 1975 (discrimination in the employment field);
• s.54 of the Race Relations Act 1976 (discrimination in the employment field);
• s.145A of the Trade Union and Labour Relations (Consolidation) Act 1992 (inducements relating to trade union membership and activities);
• s.145B of the Trade Union and Labour Relations (Consolidation) Act 1992 (inducements relating to collective bargaining);
• s.146 of the Trade Union and Labour Relations (Consolidation) Act 1992 (detriment in relation to trade union membership and activities);
• para.156 of sch.A1 to the Trade Union and Labour Relations (Consolidation) Act 1992 (detriment in relation to union recognition rights);
• s.17A of the Disability Discrimination Act 1995 (discrimination in the employment field);
• s.23 of the Employment Rights Act 1996 (unauthorised deductions and payments);
• s.48 of the Employment Rights Act 1996 (detriment in employment);
• s.111 of the Employment Rights Act 1996 (unfair dismissal);
• s.163 of the Employment Rights Act 1996 (redundancy payments);
• s.24 of the National Minimum Wage Act 1998 (detriment in relation to national minimum wage);
• Employment Tribunal Extension of Jurisdiction (England and Wales) Order 1994 (SI 1994/1623) or the Employment Tribunal Extension of Jurisdiction (Scotland) Order 1994 (SI 1994/1624) (breach of employment contract and termination);
• reg.30 of the Working Time Regulations 1998 (SI 1998/1833) (breach of the Regulations);
• reg.32 of the Transnational Information and Consultation of Employees Regulations 1999 (SI 1999/3323) (detriment relating to European Works Councils);
• reg.28 of the Employment Equality (Sexual Orientation) Regulations 2003 (SI 2003/1661) (discrimination in the employment field);
• reg.28 of the Employment Equality (Religion or Belief) Regulations 2003 (SI 2003/1660) (discrimination in the employment field);
• reg.45 of the European Public Limited-Liability Company Regulations 2004 (SI 2004/2326) (detriment in employment);
• reg.33 of the Information and Consultation of Employees Regulations 2004 (SI 2004/3426) (detriment in employment);
• para.8 of the schedule to the Occupational and Personal Pension Schemes (Consultation by Employers and Miscellaneous Amendment) Regulations 2006 (SI 2006/1031) (detriment in employment);
• reg.36 of the Employment Equality (Age) Regulations 2006 (SI 2006/1031) (detriment in employment);
• reg.34 of the European Cooperative Society (Involvement of Employees) Regulations 2006 (SI 2006/2059) (detriment in relation to involvement in a European Cooperative Society);
• reg.51 of the Companies (Cross-Border Mergers) Regulations 2007 (SI 2007/2974) (detriment in relation to special negotiating body or employee participation); and
• reg.17 of the Cross-border Railways Services (Working Time) Regulations 2008 (SI 2008/1660) (breach of the Regulations).

In Piscitelli v Zilli Fish Ltd EAT/0638/05, the EAT held that a solicitors' letter did not raise an appeal against Mr Piscitelli's dismissal, since it simply sought a cash settlement in respect of his potential tribunal claims. As a result, he could not rely on a reasonable belief that the dismissal procedure was ongoing in order to extend the time limit for submitting an unfair dismissal claim.

In Codemasters Software Company Ltd v Wong EAT/0603/06, the EAT held that an employee who appealed 87 days after his dismissal had a reasonable belief that a dismissal or disciplinary procedure was ongoing, with the result that the time limit for submitting his unfair dismissal claim to tribunal was extended.

In Towergate London Market Ltd v Harris [2008] IRLR 536 CA, the Court of Appeal agreed with the EAT, which held that, in considering whether or not the employee reasonably believed that a disciplinary or dismissal procedure was being followed, although logically a step in a procedure following dismissal is an appeal, a more general procedure between the parties aimed at resolving a dispute over a dismissal should not be excluded. In Eagles v Rugged Systems Ltd EAT/0018/09, the EAT held that the employee was entitled to rely on negotiations over a compromise agreement as a dismissal procedure that was capable of triggering an extension to the time limit for submitting an unfair dismissal claim.

In Royal Bank of Scotland v Bevan EAT/0440/07, the employee reasonably believed that a dismissal procedure was being followed until he received a letter dismissing his appeal five hours before the expiry of the normal time limit for bringing a tribunal claim, at which point this belief ceased. Regulation 15 could not, therefore, assist him. However, the employee could fall back on the general provision allowing time to be extended in s.111 of the Employment Rights Act 1996. Meanwhile, in Ashcroft v Haberdashers' Aske's Boys' School [2008] IRLR 375 EAT, the expiry of the limit for lodging a tribunal claim occurred six hours after the employee received the result of his appeal. There was, therefore, no automatic extension of the time limit by three months under reg.15. However, the EAT found that the tribunal ought to have concluded that it was not reasonably practicable for the employee to have brought tribunal proceedings before the time limit expired. Until six hours beforehand, he had had the protection of reg.15, and the dispute resolution legislation expressly encourages employees not to bring tribunal proceedings while the outcome of an internal appeal is awaited. The introduction of reg.15 meant that an internal appeal could no longer be immaterial to the reasonable practicability defence if no time was left between the appeal result and the expiry of the time limit for bringing a tribunal claim.

In Carter v (1) London Underground and (2) Transport for London EAT/0292/08, the EAT held that the tribunal was wrong to hold that reg.15 prevented an extension of time on just and equitable grounds in relation to a claim that had been submitted 14 months after the expiry of the extended period. The EAT stated that the purpose of reg.15 is, in effect, to impose a moratorium of three months before the normal time limit starts to run, in order to allow the statutory procedures to run their course, and "it would be extraordinary if its effect were to deprive employees of the benefit of the tribunal’s jurisdiction to consider an out-of-time complaint when it was just and equitable to do so".

In Remploy Ltd v G A Shaw EAT/0452/08, the EAT held that, where the claimant reasonably believes that a dismissal procedure is ongoing on the expiry of the normal time limit, reg.15 gives a one-off extension of three months only.

Procedural fairness: Under s.98A of the Employment Rights Act 1996 (repealed, as of 6 April 2009, by the Employment Act 2008) the dismissal of an employee in circumstances in which the employer has failed to comply with a requirement of the relevant statutory dismissal and disciplinary procedure will, subject to the usual qualifying conditions, be held to be automatically unfair. Regardless of whether or not the employee's dismissal is held to be unfair for any other reason, the tribunal will make an award of four weeks' pay to the employee.

It used to be the case that if an employer failed to follow a proper disciplinary procedure but could show that, had it done so, the employee would have been dismissed in any event, it could escape a finding of unfair dismissal. In Polkey v AE Dayton Services Ltd (formerly Edmund Walker (Holdings) Ltd) [1987] IRLR 503 HL this was held to be wrong, although s.98A of the Employment Rights Act 1996 restored the pre-Polkey position with effect from 1 October 2004 in relation to procedural errors unrelated to the statutory minimum dismissal and disciplinary procedures. There is, however, some debate as to how far s.98A reverses this rule. In Alexander and another v Bridgen Enterprises Ltd [2006] IRLR 422 EAT, the EAT held that it can apply where there is a failure to comply with any procedure with which the tribunal considers the employer ought to have complied. However, in Mason v Governing Body of Ward End Primary School [2006] IRLR 432 EAT, a different division of the EAT held that s.98A applies only where there is a breach of the employer's own established procedure - whether it is written or unwritten, contractual or non-contractual, and adopted by way of custom or practice or otherwise - and not where there is a breach of a more general principle of fairness. In Kelly-Madden v Manor Surgery [2007] IRLR 17 EAT, the EAT revisited the issue and diffidently preferred the approach in Alexander. In light of these conflicting decisions by the EAT, the issue will need to be clarified by the Court of Appeal.

The "no difference" rule does not apply to an employer's failure to complete the relevant statutory dispute resolution procedure before dismissing an employee.

In Selvarajan v Wilmot and others [2008] IRLR 824 CA, the Court of Appeal held that non-compliance with a general requirement (see General requirements applicable to both procedures) does not amount to non-completion of the statutory procedure.

Failure to follow the applicable dismissal and disciplinary procedure: Under reg.12 of the Employment Act 2002 (Dispute Resolution) Regulations 2004, if either party fails to complete the applicable dismissal and disciplinary procedure, including a general requirement (see General requirements applicable to both procedures), non-completion of the procedure will be attributable to that party and neither party is under any obligation to comply with any further requirement of the procedure. However, the Court of Appeal held in Selvarajan v Wilmot and others [2008] IRLR 824 CA that, where the relevant statutory procedure has been completed, reg.12 does not apply. Regulation 12 applies only where the procedure has not been completed, to decide which party is culpable.

If the dismissal and disciplinary procedure would be treated as not applying in the circumstances described in General circumstances in which the procedures do not apply, but the reason for this is one party's behaviour in threatening or harassing the other, that party will be treated as if the procedure had applied and there was a failure to comply with it attributable to it.

Adjustment of awards: Where an employee presents a claim to a tribunal under one of the jurisdictions listed in sch.3 of the Employment Act 2002 (see Extension of time limits) and the relevant statutory dismissal and disciplinary procedure was not completed before the proceedings were begun, and the non-completion was wholly or mainly attributable to a failure by the employee to comply with a requirement of the procedure or exercise his or her rights under it, the tribunal will reduce any award that it makes to the employee by between 10% and 50%. Where the non-completion was wholly or mainly attributable to a failure by the employer, the tribunal will increase any award that it makes to the employee by between 10% and 50%.

In exceptional circumstances where it would be unjust or inequitable to increase or decrease the award by at least 10% the tribunal may make a lesser increase or deduction or none at all.

Action point checklist

3.278

• Review your internal disciplinary procedures to ensure that they reflect the revised "Acas code of practice on grievance and disciplinary procedures".
• Ensure that your managers and supervisors are familiar with the procedures and understand the possible consequences for the business of failing to comply with them.
• Make sure that the written statements of employment particulars issued to your employees include a note explaining your rules and procedures for dealing with disciplinary issues and dismissal.
• Make employees aware of the likely consequences of breaking the organisation's disciplinary rules, and ensure that you give them a clear indication of the types of behaviour that are likely to be regarded as gross misconduct.
• Remember that you should always investigate allegations of gross misconduct before dismissing an employee without notice.
• Remember that the company disciplinary procedure should be regarded primarily as a means of encouraging improvement in employees whose conduct or performance is unsatisfactory, rather than a way of imposing sanctions.
• Consider whether individual incidences of absence and poor performance should be dealt with under the disciplinary procedure or the company's capability procedure.
• Where an employee is facing charges or has been convicted of a criminal offence, ensure that you consider the seriousness of the conduct and the effect on his or her position before instituting the disciplinary procedure.
• Ensure that employees are not denied their right to appeal against disciplinary decisions taken against them, including dismissal.
• Remember that all workers, and not just employees, have the statutory right to be accompanied at each of the formal stages of the disciplinary procedure.
• Be aware that, although statutory dismissal and disciplinary procedures were repealed on 6 April 2009, they still apply in certain circumstances.

Key references

3.279

Legislation

Employment Act 2002
Employment Rights Act 1996
Employment Relations Act 1999
Employment Relations Act 2004
Employment Act 2002 (Dispute Resolution) Regulations 2004 SI 2004/752
Employment Code of Practice (Disciplinary and Grievance Procedures) Order 2004 SI 2004/2356
Employment Act 2002 (Amendment of Schedules 3, 4 and 5) Order 2007 SI 2007/30
Employment Act 2008
Employment Act 2008 (Commencement No.1, Transitional Provisions and Savings) Order 2008 (SI 2008/3232)

Cases

Airbus UK v Webb EAT/0453/06
Airbus UK Ltd v Webb [2008] IRLR 309 CA
Alexander and another v Bridgen Enterprises Ltd [2006] IRLR 422 EAT
Ashcroft v Haberdashers' Aske's Boys' School [2008] IRLR 375 EAT
Carter v (1) London Underground and (2) Transport for London EAT/0292/08
Codemasters Software Company Ltd v Wong EAT/0603/06
Diosynth Limited v Thomson [2006] IRLR 284 CS
Draper v Mears Ltd [2006] IRLR 869 EAT
Eagles v Rugged Systems Ltd EAT/0018/09
Ingram v Bristol Street Parts EAT/0601/06
Kelly-Madden v Manor Surgery [2007] IRLR 17 EAT
Kulkarni v Milton Keynes Hospital NHS Foundation Trust and another [2009] EWCA Civ 789 CA
Ladbroke Racing Ltd v Arnott and others [1979] IRLR 192 EAT
Laws Stores Ltd v Oliphant [1978] IRLR 251 EAT
London Underground Ltd v Ferenc-Batchelor; Harding v London Underground Ltd [2003] IRLR 252 EAT
Mason v Governing Body of Ward End Primary School [2006] IRLR 432 EAT
Masterfoods (a division of Mars UK Ltd) v Wilson EAT/0202/06
O'Neil v Wooldridge Ecotech Ltd EAT/0282/07
Piscitelli v Zilli Fish Ltd EAT/0638/05
Polkey v AE Dayton Services Ltd (formerly Edmund Walker (Holdings) Ltd) [1987] IRLR 503 HL
R (on the application of G) v Governors of X School and Y City Council [2009] IRLR 434 HC
Remploy Ltd v G A Shaw EAT/0452/08
Royal Bank of Scotland v Bevan EAT/0440/07
Selvarajan v Wilmot and others [2008] IRLR 824 CA
Smith Knight Fay Ltd v McCoy EAT/0245/08
Sovereign Business Integration plc v Trybus EAT/0107/07
Sutton & Gates (Luton) Ltd v Boxall [1978] IRLR 486 EAT
Towergate London Market Ltd v Harris [2008] IRLR 536 CA
YMCA Training v Stewart [2007] IRLR 185 EAT
Zimmer v Brezan EAT/0294/08

Documents

Contract of employment
Written statement of terms and conditions of employment
Disciplinary rules and procedure
Staff handbook

Codes of practice

Acas code of practice on disciplinary and grievance procedures (PDF format, 1.58MB) (on Acas website)

Guidance

Discipline and grievances at work: Acas guide (PDF format, 898K) (on Acas website)
Guidance on the Employment Act 2002 (Dispute Resolution) Regulations 2004 and associated provisions in the Employment Act 2002 (PDF format, 154K) (on BIS website)

Questions and answers

3.280

Q562: Do employers have the right to dismiss employees without notice?

Employers should give a clear indication of what kind of behaviour will be taken to be such a serious breach of contract that it will result in summary dismissal. Summary dismissal does not, however, mean instant dismissal. An employer should carry out a thorough investigation of the circumstances before taking the decision to dismiss. It may suspend the employee in question on full pay while it investigates. However, the revised "Acas code of practice on disciplinary and grievance procedures" cautions that any period of paid suspension should be as brief as possible and be kept under review. The employer should ask if there were any mitigating circumstances; what the employee has to say for him- or herself; and whether or not the employee's behaviour was uncharacteristic, given his or her service and record.

Q563: What are an employer's minimum obligations with regard to disciplinary rules and procedures?

The written statement of terms and conditions of employment issued to an employee must include a note specifying any disciplinary rules and any procedures applicable to the taking of dismissal or disciplinary decisions with regard to him or her. It must also give the name or job title of a person within the organisation to whom the employee may apply for the purpose of seeking redress of any grievance relating to his or her employment and the manner in which it should be made, and explain any further steps consequent on any such application or refer the employee to a document that explains them and is reasonably accessible.

Q564: Which areas should be covered in a company's disciplinary rules?

When drawing up disciplinary rules employers should aim to specify clearly and precisely the rules necessary for the efficient and safe performance of work and the maintenance of satisfactory relations within the workplace. Typical rules will cover misconduct, substandard performance, harassment or victimisation, misuse of company facilities, poor timekeeping and unauthorised absence.

Q565: Will invoking the company disciplinary procedure be the best means of dealing with all instances of absence and poor performance?

A distinction should be made between absence due to a medically certified illness and instances of unauthorised absence or malingering. The same distinction should be made between poor performance due to carelessness or laziness and that due to the employee's inherent inability to function. Where an employee is absent through ill health or injury or genuinely unable to reach the required standard of work, the issue becomes one of capability.

Q566: Do workers have the right to be accompanied at disciplinary hearings?

Yes, s.10 of the Employment Relations Act 1999 provides for the right to be accompanied at a formal disciplinary hearing. It should be noted that this right extends not just to employees but to workers, including agency workers and homeworkers.

Q1140: What is the impact of the "Acas code of practice on disciplinary and grievance procedures" on disciplinary situations?

The code provides practical guidance on, and principles for, handling workplace disciplinary situations. Although a failure to follow the code does not, in itself, make an employer liable to proceedings, employment tribunals will take the code into account when considering relevant cases. An unreasonable failure to comply with a provision of the code may result in an adjustment of up to 25% in any compensation awarded. This may be up or down depending on which party is at fault.