The detail of how the procedures for the resolution of employment disputes operate in practice is set out in the Employment Act 2002 (Dispute Resolution) Regulations 2004, which came into force in October 2004. The regulations lay down minimum disciplinary, dismissal and grievance procedures. Subject to the service qualification of the employee, failure by the employer to comply with the procedures will result in an Employment Tribunal bringing an automatic finding of unfair dismissal and an increased compensation award. Disciplinary Rules (i.e. what is considered misconduct, serious misconduct, gross misconduct) should tell employees what behaviour is expected of them. Disciplinary Procedures are the means by which employers can deal with alleged breaches of the disciplinary rules or resolving matters of capability (where the employee does not meet the employer’s expectations in, for example, work standards).
Drawing up disciplinary rules: (Be clear that the object of the disciplinary rules is to inform employees about conduct that is unacceptable, and to deter acts of misconduct).
It is impossible to cover every possible disciplinary issue, but they should include: -
Drawing up disciplinary procedures: The ACAS Code of Practice recommends that disciplinary procedures should not be seen as merely a means of imposing sanctions, maybe leading to dismissal, but should be used to encourage improvement of conduct or performance.
It is recommended that separate policies and procedures be drawn up to deal with matters such as capability, harassment, and discrimination.
A fair disciplinary procedure should: -
Employers should conform to the ACAS Code of Practice, which sets out a list of ‘good disciplinary procedures’. They should: - (a) Be set out in writing. (b) Tell employees what disciplinary action may be taken (c) Be clear as to whom they apply. (d) Not be discriminatory. (e) Allow for matters to be addressed without undue delay. (f) Allow for information to be kept confidential. (g) State who has the authority to take disciplinary action. (h) Require employees to be informed of the complaints against them and supporting evidence, before a meeting. (i) Give employees a chance to have their say before management reaches a decision. (j) Provide employees with the right to be accompanied; (k) Provide that no employee is dismissed for a first breach of discipline, except for gross misconduct. (l) Require management to investigate fully before any disciplinary action is taken. (m) Ensure that employees are given an explanation for any sanction. (n) Allow employees to appeal against any decision.
The Statutory dispute resolution scheme involves either a standard three-step or a modified two-step procedure.
The standard three-step DDP-involves; -
The employee has rights at each stage of the procedure (for example, accompaniment) and the employer should take care to inform the employee of his/her rights.
The modified two-step DDP This modified procedure permits an employer to comply with statute, even if they have dismissed before an investigation. After the dismissal has occurred, the employer can set out the reasons for the decision to dismiss and offer the right of appeal. However, it will almost always be considered unfair, under the current case law, to dismiss an employee instantly without carrying out some kind of investigation and going through some procedure even in cases of obvious gross misconduct. We would normally recommend avoiding the use of the modified procedure.