Backhouse Solicitors Employment Law Training 2014

“Disciplinaries, Grievances and Settlement Discussions”

3 December 2014

Executive Summary

In this training course we will cover three of the more difficult to handle areas of employment law.

• Disciplinary procedures for dealing with conduct issues

• Grievance procedures

• Settlement discussions

Part 1 - Disciplinaries

We will cover:

– What is a conduct issue?

– How to carry out a disciplinary in relation to conduct and the ACAS Code

– Key things to consider to try to avoid a claim

What is a conduct issue?

• This will vary from business to business but will include issues such as:

– Behaviour/attitude at work

– Poor Timekeeping

– Unexplained or unauthorised absence

– Health and safety breaches

– Inappropriate use of telephones, email and internet

What to do if there is an issue

• Do not ignore it!

• Don’t do anything rash (however tempting in the heat of the moment!)

• Speak to us straight away so we can advise the best course of action

Can it be resolved informally?

• Informal action is often a very useful tool and may save time and resources

• However, the employee should be aware that formal action may be commenced if the problem is not resolved

Informal Action - Suggested Steps

• Hold a confidential private meeting with the employee to highlight the problem

• Enquire why the problem has arisen • Agree what action is needed • Keep a record of the conversation in case it needs to be

referred to later • Send a memo to the employee setting out what has been

agreed/decided and say that disciplinary action will follow if there is no change

• Any warnings needed should be verbal and should not be confirmed in writing nor placed in the employee’s disciplinary file nor taken into account in future proceedings

Formal Action - The ACAS Code

• In more serious cases, formal disciplinary action will be necessary and this may lead to a dismissal

• The ACAS Code of Practice on Disciplinary and Grievance Procedures (The ACAS Code for short) is applicable to disciplinary matters

• It is not law, but ….. • Tribunals take it into account when deciding if you have

acted reasonably • Failure to follow it can result in an adjustment to the

amount of compensation payable • Therefore you should bear it in mind from the start if the

employee might bring an unfair dismissal claim!

Formal Action in Misconduct Cases

• To fairly dismiss an employee for misconduct, an employer will be expected to be able to show a Tribunal that at the time of the dismissal: a. It believed the employee to be guilty of misconduct;

b. It had reasonable grounds for believing that the employee was guilty of that misconduct; and

c. At the time it held that belief, it had carried out as much investigation as was reasonable in the circumstances.

Formal Action 1 - Investigation

Holding an investigation is critical: a) You should investigate without unnecessary delay

b) You should interview any witnesses (including the employee) as necessary

c) There is no statutory right for an employee to be accompanied at an investigation meeting (but check that they are not afforded the right under contract)

d) You should record the evidence that has been obtained through investigation (you will need this at a later date)

e) If a period of suspension is needed then it should be made clear to the employee that the suspension is not a disciplinary sanction in itself

Note - Reasonableness of Investigations

• Employers are required to carry out fair, reasonable and impartial investigations into allegations of misconduct

• A tribunal should not substitute its own view of what a reasonable investigation should be

• It should ask whether the employer’s actions had been within the “band of reasonable responses”

• An employer should also consider whether or not dismissal is a fair sanction to impose

Formal Action 2 – Next Steps Following the investigation, you should decide whether there is a case to answer. A) If no formal case to answer inform the Employee (and follow the

suggested steps mentioned previously) B) If there is a case to answer:

i. Invite the employee by letter to a disciplinary hearing; specify the date, time and venue and confirm that they have the right to be accompanied by a colleague or trade union representative

ii. Provide them with copies of the case against them iii. Be clear about the allegations – these need to be detailed enough to

enable them to respond iv. If possible, the person holding the disciplinary should be different to the

person that held the investigation

Formal Action 3 – The Hearing

• This is the opportunity for the employee to state their response to the allegations against them – Have an impartial colleague take notes of the meeting

– Stick to the original allegations – don’t start bringing in other allegations at this stage

– The meeting should be held by a line manager or someone more senior to the employee in question (wherever possible)

– Conclude the meeting by confirming that the company will now consider the evidence and confirm the outcome in writing to the employee

Formal Action 4 – The Outcome

• Decide on the appropriate action (you may want to take legal advice at this point);

• Inform the employee of the sanction (if any) imposed on them and the reasons for that decision;

• If a sanction (such as a written warning) is imposed then the employee should be notified of how long the sanction will remain “live” for;

• If the sanction is dismissal then this should only be imposed by someone with authority to make that decision (such as manager or head of department); and

• Provide the employee with a chance to appeal against the disciplinary

Formal Action 5 - Appeals

If an employee exercises their right to appeal:

– Acknowledge their appeal; if the grounds of appeal are not clear then ask for clarification

– Inform them of the date, time and venue of the appeal

– Remind them of their right to be accompanied at the appeal hearing (i.e. by a colleague or trade union representative)

– The person holding the appeal should be different to the person that held the disciplinary

Formal Action 6 - Housekeeping

• Keep a record of the matter (and outcome) on file

• If the employee has been dismissed and you receive a reference request then the reference should be kept factual, such as:

– The start and end dates

– The employee’s job role/job title

– The reason for leaving (i.e. poor performance, gross misconduct, resignation pending disciplinary proceedings for misconduct/poor performance)

Why is the process so important?

• If an employee with 2 years service is dismissed they have the right to bring an unfair dismissal claim if you haven’t followed the procedure

• The 2 years doesn’t apply in discrimination claims and other statutory claims such as whistleblowing and holiday pay claims etc.

• You therefore must be able to show that the dismissal was fair and the paper trail will support your case

Part 2 - Grievances

We will cover:

– What is a grievance?

– How to carry out a grievance procedures in line with the ACAS Code

– Key things to consider to try to avoid a claim

What is a Grievance?

• A grievance is a concern, problem or complaint brought by a member of staff

• It could be raised against the employer or against another employee

• Common grievances relate to:

– Employment terms and conditions

– Relations with colleagues, such as bullying and harassment

– Health and Safety

– Discrimination

– Working practices or organisational changes

The ACAS Code

• The ACAS Code also applies to grievances

• It is not law so failure to comply will not in itself create liability, but….

– It is best to follow it where grievances cannot be resolved informally, to avoid potential Tribunal claims (e.g. discrimination and constructive dismissal

– Tribunals take it into account when considering if you have acted reasonably

– Unreasonable failure to comply may result in a tribunal adjusting the size of an award by up to 25%

Grievances 1 - General principles

• Employers and employees should act promptly and without unreasonable delay

• Employers and employees should act consistently

• Employees should be allowed to be accompanied at appropriate meetings

• Employees should be able to appeal against formal decisions

Grievances 2 - Raising a grievance

• Where possible, it is best to resolve grievances informally

• If it has not been possible to resolve the grievance informally the employee should raise the matter formally with a manager who is not the subject of the grievance

• This should be done in writing, without unreasonable delay and should also set out the nature of the grievance

Grievances 3 – Holding a meeting

• After the grievance is received, the employer should arrange for a formal meeting to be held without unreasonable delay

• At the meeting, the employee should be given the opportunity to explain their grievance and what they think should be done to resolve it

• The employer should bear in mind that an investigation may prove necessary and that it may be appropriate to adjourn the meeting for this purpose

Grievances 3 – Meeting Companions 1

• Employees have a statutory right to have a companion at certain meetings

• This includes grievance meetings that concern a duty owed by an employer to an employee - for example, where the complaint is that the employer has breached a term of the employee’s contract

• This also includes appeals from the decision of the hearing

Grievances 3 – Meeting Companions 2

• A request to be accompanied at a meeting must be reasonable • What is reasonable is dependent on the circumstances • An example of what is unreasonable would be requesting a

companion who is at a distant location when someone could be found on site

• A companion can be – A fellow employee – An official employed by a trade union – A representative of a trade union, provided they are certified by the

trade union as competent to accompany an employee – Employers have a discretion to allow someone else to be the

companion (such as a friend or family member) but this is discretion only and they are not obliged to agree to such a request

Grievances 3 – Meeting Companions 3

• A companion may:

– Put and sum up the employee’s case to the hearing

– Respond on behalf of the employee to views expressed at the meeting

– Confer with the employee during the meeting

• A companion may not:

– Answer questions on the employee’s behalf

– Address the hearing against the employee’s wishes

– Prevent the employer from explaining their case

Grievances 4 – After the meeting

• Following a grievance meeting, the employer must decide whether to take action, and if so, what action to take

• The decision and what action is to be taken must be communicated in writing to the employee without unreasonable delay

• The employee must be informed that they have the right to appeal against the outcome if they wish

Grievances 4 – Appeals

• If the employee decides to appeal, they must let the employer know in writing that they are appealing and the grounds of the appeal, without unreasonable delay

• The appeal should be heard without unreasonable delay at a time and place that the employee has been notified of in advance

• The appeal should be dealt with impartially, and preferably by a manager not previously involved in the case

• Again, the decision must be communicated in writing to the employee without unreasonable delay

Overlap with disciplinary issues

• An employee may raise a grievance during disciplinary proceedings

• If this happens, it may be appropriate to suspend the disciplinary proceedings whilst the grievance is dealt with

• If the disciplinary matter and the grievance are related, it may be more appropriate to deal with them concurrently

Collective grievances

• Collective grievances are where a representative (such as a Trade Union or other staff representative) raises a grievance on behalf of two or more employees. This is more common in larger organisations

• The provisions of the ACAS code do not apply to collective grievances, and instead the employer’s collective grievance policy will be applied

• As an employer, if you receive a collective grievance then due to the likely complexity it would be advisable to consult with a specialist employment solicitor

Part 3 – Settlement Discussions

We will cover:

– What are settlement discussions?

– Why they are useful

– Types of settlement discussion

– Formalising the agreed settlement

What are Settlement Discussions?

• Settlement discussions are negotiations between employer and employee with a view to ending the employment relationship without litigation

• They may take place before or after a tribunal claim has been issued

Why Consider Settlement?

• Reaching a mutual agreement which is legally binding can take away the risk of an employment tribunal claim

• If an employee has already issued a claim, reaching a negotiated settlement should be quicker and cheaper than defending a Tribunal claim

• The settlement should work for both parties and will usually agree payment amounts and reference wording, removing any uncertainty

• But remember – always take advice. A poorly settled claim can be expensive!

Starting a Discussion

• Before entering into settlement discussions with an employee or ex-employee it is very important to take advice first

• Doing it the wrong way leaves you open to tribunal claims

• Even worse, you may make a payment and still end up with a tribunal claim!

• Discussions need to be arranged in one of two ways:

– Either as a “Protected Conversation” as part of pre-termination negotiations; or

– On a “Without Prejudice” basis

Protected Conversations

• A protected conversation is a conversation with an employee in a prescribed format

• Provided it is done correctly, the employee cannot use the contents of the conversation as evidence of unfair dismissal in a tribunal claim

• There doesn’t need to be an existing dispute for the rule to apply

• The aim is to allow an employer to make an offer to an employee before termination of employment on mutually agreed terms

Exceptions to the Rule

• The rules regarding protected conversations are subject to the following exceptions:

– The contents of the discussion will still be admissible where the employee alleges some form of automatic unfair dismissal

– If a discussion is found to be improper, or connected with improper behaviour, a tribunal may decide to take into account some or all of the contents of the discussion

– In certain circumstances at a costs hearing

“Without Prejudice” Discussions • The “without prejudice” rule is a rule of evidence which (subject to

exceptions) makes inadmissible in any subsequent litigation evidence of negotiations which are: – entered into between parties with a view to settling litigation or a dispute of

a legal nature, and

– genuinely aimed at settlement, whether oral or in writing

• The without prejudice rule can only apply where the parties are already in dispute, whereas protected conversations usually take place before a dispute

Formalising a Settlement • For a settlement to be binding it needs to be legally

formalised

• Without this, either party may default on the agreement. For example, an employee could received a pay out and then still bring a claim

• There are two binding forms of settlement: – Completing a COT3 form - this is cheaper but less thorough

– Signing a Settlement Agreement – this is more thorough, but an employer usually has to contribute to the employee’s legal costs to have the agreement explained to them and signed by a solicitor to say that they understand what they are signing

Any Questions?

Further Help

• For further information or to discuss your individual needs, please don’t hesitate to contact Minal Backhouse, Kelly Griffiths or Sam Cass for more details:

• T: 01245 893400

• E: minal.backhouse@backhouse-solicitors.co.uk

• W: www.backhouse-solicitors.co.uk