disciplinary and
grievance procedures
by
Roderick Ramage, solicitor, www.law-office.co.uk
first
published in New Law Journal (newlaw.journal@lexisnexis.co.uk) on 19 November
2004
DISCLAIMER
This article is not advice to any person
and may not be taken as a definitive statement of the law in general or in any
particular case. The author does not accept any responsibility for anything
that any person does or does not do as a result of reading it.
introductory note
On
1 October 2004, more than two years after Royal Assent, the disciplinary and
grievance procedures contained in Schedule 2 of the Employment Act 2002 were
brought into force by the Employment Act 2002 (Dispute Resolution) Regulations
2004, SI 2004/752. Section 30(1) of the
2002 Act provides that every employment contract shall have effect to require
the employer and employee to comply with the disciplinary and grievance
procedures, and by sub-section (2) the parties may not contract out of the
statutory procedures, but any other procedures agreed between the parties will
continue to apply in addition to the statutory procedures and in so far as they
are not inconsistent with them.
By
s3 of the Employment Rights the employer must either the procedures or make
documents containing them procedures “reasonably accessible” to the employees
and specify the person to whom grievances should be made. It should be assumed in practice that
employers, except those who cannot be bothered or deliberately do the minimum
that the law requires or less, will wish, particularly if so advised by their
solicitors, to include disciplinary and grievance procedures in their
statements of terms of employer.
The
following precedent is intended to be sufficient to satisfy the statutory
procedures and could be used as an employer’s entire disciplinary and grievance
procedures. It first appeared in the 18th
Edition of Kelly’s Draftsman, edited by the writer, in anticipation that the
statutory procedures would have been brought into force much earlier than was
the case. In Kelly, the statutory
procedures are shown as additions to the procedures agreed between the employer
and employee. Where the following
precedent is insufficient for a particular employer’s requirements and more
detail is required, possible additional provisions are available in Kelly.
precedent
disciplinary procedure
preliminary
If
any disciplinary action taken by the Employer arises relating to the employee’s
employment, it shall be dealt with in accordance with either of the following
procedures. The first (the standard procedure) is in three stages and provides
for meetings to seek to deal with the matter, whilst the second (the modified
procedure) is in two stages where the matter is to be dealt with initially in
writing but at a meeting on appeal.
first Standard
procedure
Step 1: statement of grounds for action and
invitation to meeting
1.1 The employer must set out in writing the
employee's alleged conduct or characteristics, or other circumstances, which
lead him to contemplate dismissing or taking disciplinary action against the
employee.
1.2 The employer must send the statement or a
copy of it to the employee and invite the employee to attend a meeting to
discuss the matter.
Step 2: meeting
2.1 The meeting must take place before action is
taken except in the case where the disciplinary action consists of suspension.
2.2 The meeting must not take place unless –
(a) the
employer has informed the employee what the basis was for including in the
statement under paragraph 20 the ground or grounds given in it, and
(b) the employee has had a reasonable opportunity
to consider his response to that information.
2.3 The employee must take all reasonable steps
to attend the meeting.
2.4 After the meeting the employer must inform
the employee of his decision and notify him of the right to appeal against the
decision if he is not satisfied with it.
Step 3: appeal
3.1 If the employee does wish to appeal, he must
inform the employer.
3.2 If the employee informs the employer of his
wish to appeal, the employer must invite him to attend a further meeting.
3.3 The employee must take all reasonable steps
to attend the meeting.
3.4 The appeal meeting need not take place before
the dismissal or disciplinary action takes effect.
3.5 After the appeal meeting the employer must
inform the employee of his final decision.
second Modified
procedure
Step 1: statement of grounds for action
1 The employer must:
(a) set
out in writing:
(i) the employee's alleged misconduct which has
led to the dismissal,
(ii) what the basis was for thinking at the time
of the dismissal that the employee was guilty of the alleged misconduct, and
(iii) the employee's right to appeal against
dismissal, and
(b)
send the statement, or a copy of it, to
the employee.
Step 2: appeal
2.1 If the employee does wish to appeal, he must
inform the employer.
2.2 If the employee informs the employer of his
wish to appeal, the employer must invite him to attend a meeting.
2.3 The employee must take all reasonable steps
to attend the meeting.
2.4 After the appeal meeting, the employer must
inform the employee of his final decision.
1 Each step and action under the procedure
must be taken without unreasonable delay.
2 Timing and location of meetings must be
reasonable.
3 Meetings must be conducted in a manner
that enables both employer and employee to explain their cases.
4 In the case of appeal meetings which are
not the first meeting, the employer should, as far as is reasonably
practicable, be represented by a more senior manager than attended the first
meeting (unless the most senior manager attended that meeting).
5 The employee is entitled to be accompanied
at any meeting by a trade union employee or official or another of the
employer’s workers, who may address the meeting and confer with the employee
during it.
grievance procedure
Preliminary
If
any matter (including any disciplinary action taken by the Employer) arises
relating to the employee’s employment about which the employee is dissatisfied,
it shall be dealt with in accordance with either of the following procedures.
The first (the standard procedure) is in three stages and provides for meetings
to seek to resolve the matter, whilst the second (the modified procedure) is in
two stages where the matter is to be resolved in writing without a meeting.
first standard
procedure
Step 1: statement of grievance
1 The employee must set out the grievance in
writing and send the statement or a copy of it to the employer.
Step 2: meeting
2.1 The employer must invite the employee to
attend a meeting to discuss the grievance.
2.2 The meeting must not take place unless –
(a) the employee has informed the employer what
the basis for the grievance was when he made the statement under
paragraph 6, and
(b) the employer has had a reasonable opportunity
to consider his response to that information.
2.3 The employee must take all reasonable steps
to attend the meeting.
2.4 After the meeting, the employer must inform
the employee of his decision as to his response to the grievance and notify him
of the right to appeal against the decision if he is not satisfied with it.
Step 3: appeal
3.1 If the employee does wish to appeal, he must
inform the employer.
3.2 If the employee informs the employer of his
wish to appeal, the employer must invite him to attend a further meeting.
3.3 The employee must take all reasonable steps
to attend the meeting.
3.4 After the appeal meeting, the employer must
inform the employee of his final decision.
secondly modified
procedure
Step 1: statement of grievance
1 The employee
must —
(a) set out in writing
(i) the grievance, and
(ii) the basis for it, and
(b) send
the statement, or a copy of it, to the employer.
Step 2: response
2 The employer must set out his response in
writing and send the statement or a copy of it to the employee.
General requirements
3.1 Each step and action under the procedure must
be taken without unreasonable delay.
3.2 Timing and location of meetings must be
reasonable.
3.3 Meetings must be conducted in a manner that
enables both employer and employee to explain their cases.
3.4 In the case of appeal meetings which are not
the first meeting, the employer should, as far as is reasonably practicable, be
represented by a more senior manager than attended the first meeting (unless
the most senior manager attended that meeting).
3.5 The employee is entitled to be accompanied at
any meeting by a trade union employee or official or another of the employer’s
workers, who may address the meeting and confer with the employee during it.
copyright Roderick Ramage
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