ACAS Chief Executive Susan Clews, stated that the approximate cost of workplace conflict in Britain is thought to be in the region of £28.5bn. This equates to over 9 million employees experiencing workplace conflict each year.
Here at Avensure, we assist our clients in handling all aspects of workplace conflict, including employee grievances. However, the majority of the calls to our advice line relate to employee misconduct, and with the current compensation limit figures for unfair dismissal reaching a whopping £105,707 when it comes to disciplinary and grievances, employers simply can’t afford to get this wrong.
What is an employee grievance?
A grievance is a form of employee dispute and can cover a variety of concerns. For example:
- Pay queries such as wage errors and sick pay inaccuracies.
- Bullying and harassment
- Health and safety concerns
How are employee grievances resolved?
- Often, an employee dispute can be resolved informally.
- If they are raised as formal employee grievances or the dispute is serious in nature, i.e., bullying and harassment, they should be dealt with in accordance with the formal grievance procedure.
Why is a grievance procedure and effective dispute resolution important?
- Even the smallest of concerns has the potential to build up.
- Getting Avensure involved at the earliest opportunity can be the difference between nipping a small concern in the bud to then spending huge amounts of valuable management time on a matter that has been allowed to escalate.
- Employee disputes also upset morale and affect productivity.
- They also increase staff turnover, which means lost money on recruitment and increased training costs.
- Failing to tackle employee disputes can increase sickness absences due to stress and anxiety.
What is a disciplinary procedure?
A disciplinary procedure is there to enforce the rules and standards in your organisation. They set out the types of behaviours the employer does not expect to see and the consequences of breaching those rules.
Conduct issues range from minor misconduct, such as lateness, to gross misconduct, covering the most severe of rule breaches, such as theft, fraud, and violence.
Even issuing a formal verbal warning comes with a requirement to adhere to a fair disciplinary procedure, and with the sanction for committing an act of gross misconduct being summary dismissal (i.e., a dismissal without notice), it is vital that employers have a robust disciplinary procedure in place and seek the best advice to ensure that procedure is adhered to.
What are the key stages of a fair disciplinary process?
Investigations: the investigation is the foundation of a fair disciplinary process. It should be:
- Carried out promptly.
- Gather all evidence, both for and against the allegations.
- It should concern the ‘who’, ‘what’, ‘where’, and ‘when’—i.e., it is a fact-finding exercise.
The disciplinary hearing is the formal stage of the disciplinary process. A disciplinary hearing allows:
- The employee is to formally respond to the allegations and the witness/material evidence.
- To put forward a full explanation and present any mitigation for their alleged actions.
- The person chairing the formal disciplinary proceedings hearing should not be the person chairing the investigation. If you are a small business, this can be tricky, so please discuss your options with your consultant.
The right of appeal, also applicable to formal employee grievances, is the purpose of the appeal stage in formal disciplinary proceedings, which is to give the employee an opportunity to challenge the original decision, and it also gives the employer the opportunity to rectify any procedural flaws, unfairness, or bias that may render the original decision unfair or inappropriate in some way.
The usual grounds for an appeal are (but are not limited to):
- The original decision was too severe or biased in some way.
- The correct disciplinary procedure was not followed, e.g., the right to be accompanied was not given, the appropriate notice ahead of the formal hearing was not given, and so on.
- The evidence or mitigation presented was not given due consideration.
- New evidence has come to light.
The person chairing the appeal hearing should not be the person involved in the disciplinary or investigation stages.
What is meant by ‘short service’?
An employee requires a minimum of two years’ service to bring a claim for unfair dismissal, so an employee with fewer than two years’ service is classed as having short service.
Most contracts and handbooks will state that there is a right to take into account someone’s short service when deciding the outcome of disciplinary or capability procedures. This means:
- An employee with short service could be dismissed for a first disciplinary offence, even if it is not gross misconduct.
- If they are within a probationary period, they could face dismissal if they are not deemed to be suitable for the role.
- If not within a probation period or outside their probation period but still underperforming, they could be dismissed on the grounds of capability
Are there any exceptions to this?
Automatically unfair dismissals do not require the minimum qualifying service of 2 years to bring a claim.
- Pregnancy, including all reasons relating to maternity.
- Family, including parental leave, paternity leave (birth and adoption), adoption leave, or time off for dependants.
- Acting as an employee representative
- Acting as a trade union representative
- Acting as an occupational pension scheme trustee
- Joining or not joining a trade union
- Being a part-time or fixed-term employee
- Pay and working hours, including the Working Time Regulations, annual leave, and the National Minimum Wage
Please note that if the reason for the dismissal relates to any of the above, not even a fair procedure will prevent a claim for automatic unfair dismissal!
Is there a requirement to adhere to any procedure for a short-service dismissal?
It is always good practice to follow a fair disciplinary process before terminating any employment contract.
If the employer doesn’t follow any procedures, they risk:
- Failing to spot a potentially automatic, unfair dismissal reason.
- Deciding in haste and losing an employee who, with increased training and guidance, could turn out to be a valuable member of staff.
- A breach of contract where the disciplinary and capability procedures are a contractual requirement.
If you require on-site assistance with any aspect of the processes surrounding disciplinary and grievances, don’t forget Avensure Plus, which offers on-site, in-person, or remote HR support. Click here to Download Our Brochure. For more information on how we can help you and your business with our Onsite services, email our team today at Plus@avensure.com.
As always, this article is a guide and not a substitute for taking advice; please contact Avensure for specific advice for your business. Click here: Avensure Contact!