Jon Curtis is an experienced employment law solicitor based in Sheffield. He is a founding partner of Ironmonger Curtis LLP and Managing Director of online human resources management system Myhrtoolkit.
Effective disciplinary and grievance procedures – top 10 tips
Disciplinary and grievance procedures can be among the most disruptive events in a small organisation’s life. But it is important to face them “head on”; they cannot be avoided and the employer who puts their head in the sand takes a big risk of worse problems in the future.
Just to be clear, a “disciplinary” is when an employer raises allegations against an employee. A grievance is when an employee raises allegations against their employer (or a manager of the employer).
Some years ago (you may remember) the then labour government tried to impose a rigid framework on how disciplinary and grievance procedures should be run. This was a very foolish idea as such issues come in all shapes and sizes and catch humanity at their most vulnerable. The prescriptive formulas didn’t work – and many many hours were wasted in court arguing over whether “Step One” had been properly completed and so on. A waste of time and money.
That said, it is good for employers to follow a basic process. Whilst the two procedures are fundamentally different, they share many characteristics and lessons for both can be learned at the same time.
So here is the basic process which must not be diverted from:
- Investigate the allegations fully. Get witness statements if necessary. If the facts are agreed and speak for themselves, no investigation is necessary, but a summary of the agreed facts should still be prepared in writing.
- Invite the employee to a hearing in writing. Give them a day or two notice (more if the allegations are serious) to prepare themselves properly. Tell them in the letter they may bring a companion who must be a work colleague or a union rep.
- Ensure all the evidence is sent to the employee in advance.
- Have a hearing. Allow the individual plenty of time and space to express themselves. Consider the evidence carefully and take your time. Do not rush, even if you feel nervous. Break for tea and coffee if you need to. Make sure you keep copious notes (to do this properly you will need to keep everything at a measured pace).
- Write to the employee after the hearing with your decision, and offer them a chance to appeal if they want to. The person doing the appeal should not have been previously involved unless you are too small for this.
- Follow steps 2-5 above process for any appeal.
Top Ten Tips
- Take all disciplinary and grievance matters seriously. Prioritise them. Do not delay.
- Think about confidentiality at every stage and make sure all employee witnesses who are involved are told in no uncertain terms they must keep the issues confidential.
- Do not make up your mind until you have finished the hearing. It is incredible how many employers get themselves in trouble because they let slip half way through the hearing (or even before it) what the sanction is going to be (“You will have a fair trial and then be shot”!). I have over the years seen many cases turn round in an almost unbelievable way on a small piece of evidence which pops out right at the last minute. Keep an open mind!
- Have someone senior, intelligent, organised and prudent do the investigation (if you have one!). Particularly with complex allegations such as fraud, you may need professional help. See for instance our investigations service. The investigation documents (if more than a few pages long) should be photocopied and arranged chronologically, and paginated if possible with an index. Obviously this is not necessary for simple cases. Make sure you keep a clean copy to one side in case you need it for legal proceedings!
- If the investigation is complex, use investigatory meetings to find out more before any hearings begins. Take the time to sit with someone and really delve deeply into the allegations before moving on to a formal hearing.
- Make sure the person who does the investigation is not the person who holds the hearing (unless you have no option because you are too small, or if the facts are obvious and agreed).
- Do not underestimate the time and energy you will need to put in to this. Some complex matters can take days and days of time to get sorted properly.
- Send the employee a copy of the notes of the hearing and any investigatory meeting.
- I recommend you do not give your decision at the hearing straight away unless it is a simple or trivial matter. Take time to think about it and set out your reasoning in a letter. Talk it through with a confidential trusted adviser.
- Take appeals seriously! Again, do not delay and make sure any points of uncertainty which arose during the first hearing are properly dealt with.
- A free extra tip: if allegations of discrimination are involved, take legal advice.
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