Statutory Grievance and Disciplinary Procedure

Statutory Disciplinary Procedure

These procedures apply to all employers.
Small employers are no longer exempt.

However there are certain situations in which an employer is not required to follow the statutory disciplinary procedure (in cases of collective dismissals where 20 or more employees are to be made redundant within a 90 day period (see our section on redundancy), or where there are other specified reasons for dismissal such as the employer's premises burning down or where continuing to employ the employee would breach a statutory duty imposed on the employer.

In addition where an employee has applied to a Tribunal for interim relief or where industry level agreements are in place and include dispute resolution the appeal stage of the statutory disciplinary procedure need not be used.)

The following minimum standards for disciplinary are introduced by the Employment Act 2002 (section 29 and Schedule 2) and were brought into effect on 1st October 2004:

Failure to follow the standard procedure will amount to unfair dismissal. Where an employer has failed to take additional steps beyond those required by the statutory procedure this may not amount to unfair dismissal if the employer can show that following the additional procedures would have made no difference to the decision to dismiss (see new s.98A inserted into Employment Rights Act 1996).

An Employment Tribunal can make a punitive award of an increase in compensation of 10% for failure to comply with the standard procedure, (and this can go up to as much as 50%).

A Tribunal can also award up to four weeks pay for the period of time it would have taken to have gone through the disciplinary procedure.

Employers can have their own contractual disciplinary and grievance procedures as long as these are not less than the minimum standards set out by the Act. The Statutory procedure involves following either a 3 stage procedure or a 2 stage procedure (the "modified procedure").

3 Stage Procedure
In step one an employer must give a written statement to the employee setting out why the employer has decided to take disciplinary action i.e. the employee's alleged misconduct and the reasons for thinking the employee is guilty of the alleged misconduct.

In step two the employer must arrange a meeting with the employee, who has the right to be accompanied by a work colleague or union representative. The meeting must take place at a reasonable time and at a convenient location. At the meeting the employer should state the case against the employee and give the employee an opportunity to respond.

Following the meeting the employer should notify the employee of their decision and tell the employee that they may appeal against the decision.

In step three the employee may appeal against the decision and choose to be accompanied at the appeal meeting, which should ideally be heard by a different or more senior manager. The employer should inform the employee of the decision of the appeal. The employee must appeal in order to complete the statutory procedure. The statutory three-step discipline and dismissal procedure is more suitable when the employer is considering taking serious disciplinary action, such as dismissal, suspension without full pay, or demotion.

The 3 stage procedure is not intended to replace established disciplinary procedures, but any contractual disciplinary procedure should as a minimum requirement involve the 3 elements.

The 3 stage procedure may not be suitable for "minor" offences such as persistent lateness when a system of written warnings may be more suitable.

2 Stage Procedure (the "modified procedure")
The modified two-step procedure should be used only in a very small number of gross misconduct cases where the employee's conduct would justify summary dismissal and where it was reasonable for the employer to have dismissed the employee without carrying out any further investigation and where a tribunal is likely to find that the employer was justified in dismissing the individual without notice.

In step one the employer must write to the employee setting out the reasons for dismissal (i.e. details of the alleged misconduct which led to the dismissal and the reasons for thinking at the time of dismissal that they were guilty of the alleged conduct) and tell the employee of their right of appeal.

Step two will be set in motion if the employee wishes to meet to appeal against the dismissal. An appeal hearing will be held and the employee has the right to be accompanied. At the meeting the employer must inform the employee of their decision.

Statutory Grievance Procedure

This procedure applies only where the employee has a grievance which relates to statutory employment rights such as equal pay, discrimination, redundancy, maternity etc. It must be used in constructive dismissal cases and where the employer believes they are being victimised.

3 Stage Procedure
In step one an employee must set out their grievance in writing and send a copy to their employer. A questionnaire issued by an employee to gather information for a potential discrimination or equal pay claim will not be treated as invoking the first step of the three stage procedure.

In step two the employer must invite the employee to attend a meeting. The employee has the right to be accompanied by a work colleague or union representative. The meeting must take place at a reasonable time and at a convenient location. At the meeting the employer should state his/her grievance and give the employer an opportunity to respond. Following the meeting the employer should notify the employee of their decision and tell the employee that they may appeal against the decision if they feel the grievance has not been satisfactorily resolved.

In step three the employee may appeal against the decision and choose to be accompanied at the appeal meeting, which should ideally be heard by a different or more senior manager. The employer should inform the employee of the decision of the appeal. The employee must appeal in order to complete the statutory procedure.

2 Stage Procedure (the "modified procedure")
If the employee has left their employment and wants to raise a grievance they can still use the three stage process. However, if the employee left before making the employer aware of the grievance or before the three-stage process was completed they can still use the two stage process if they and their employer agree in writing to use it.

In step one the employer must write to the employer setting out the nature of their grievance.

Step two will involve the employer writing back to the employee giving their response to the points made.

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