The starting point is to have the right policies and procedures in place to help guide you through the management of grievances and disciplinary matters.
The ACAS Code of Practice on Disciplinary and Grievance Procedures provides employers with advice and guidance when dealing with such matters. Your own policies should as a minimum standard reflect the Code. Ensure that your practice management team are familiar with the ACAS Code.
The ACAS Code defines grievances as “concerns, problems or complaints” as well as setting out basic standards of reasonable behaviour. Employment tribunals take the Code into account and have the discretion to increase the amount of compensation awarded to an employee by up to 25 percent if you’ve unreasonably failed to comply with the ACAS Code.
Employees may raise a grievance relating to employment terms and conditions, the introduction of new working practices/change programmes, working relationships, and bullying and harassment.
Grievances can be raised in many ways: by letter, via email or verbally. It is important to always treat grievances seriously and avoid assuming anything about the grievance or the people involved before all the facts are identified. Outcomes can range from invoking a disciplinary procedure in relation to the subject matter, agreeing for informal or formal mediation, agreeing to further consultation or implementing formal training programmes.
Setting out your expectations of practice staff and consequences of misconduct in your policies will ensure employees understand what constitutes misconduct and how it will be addressed.
Include a list of actions that amount to either misconduct or gross misconduct and refer to this should evidence of such a serious incident arise. Your policy should explain that incidents will be investigated and dealt with as part of a formal disciplinary procedure and that the practice may choose to suspend the employee while an investigation is underway (but only as a last resort). Also detail the type of sanctions which may apply if the allegations are upheld.
Capability is often tricky to tackle – you may have a specific policy that deals with capability problems or, in its absence, you can use your disciplinary procedure.
Initial cases of unsatisfactory performance may be dealt with informally. If, however, they continue or are of a more serious nature, you may have to move to a formal process which means instigating the capability (or disciplinary) procedure. The aim of following such a process is to provide clear guidance and support, including training where necessary, in order to address the areas of underperformance and to sustain improvement moving forward.
The formal process
Investigate the grievance or allegations of misconduct or underperformance. Invite the employee to a meeting to understand the basis of the issue, identify any potential witnesses and to fact-find.
If there is sufficient evidence to be considered at a formal meeting, invite the employee to a meeting with at least 48 hours’ notice and set out the right to be accompanied. The disciplinary officer should be someone who has not been involved in the matter before and who can bring an unbiased viewpoint to the meeting.
Before reaching a decision all the facts should be considered. If necessary, further investigations can be undertaken before reaching a decision. The decision should be confirmed in writing detailing the reasons to support the decision, along with confirmation of any formal sanction applied. The employee should be provided with the right of appeal regardless of the outcome.
If the employee appeals the outcome this should be heard by a more senior person from within the practice to hear it. The decision of the appeals officer can either uphold the original decision in full or part or, if appropriate, overturn the decision and reach a different conclusion. The appeals officer’s decision is final and there is no further right of appeal.
Employees should be kept informed of the stage of the process reached. The clearer the process, the easier it will be for employers to show an employment tribunal they have followed a fair and reasonable process. VP