Three good reasons to have effective disciplinary and grievance procedures
This month, your contributors take a look at a personnel issue as it affects the bus and coach industry. It is an issue that has resonance across all industries and sectors, but no less important to our sector for that. That issue is why to have effective disciplinary and grievance procedures. There are three basic reasons.
1. It saves you money;
2. It saves you money;
3. It saves you money.
Of course, we might express this another way. We might say that effective procedures:
1. Set standards and create a safe working environment
2. Assist you effectively to manage staff expectations;
3. Improve fairness and consistency;
4. Improve performance in your business;
5. Accelerate the exit of ‘non-desirables’;
6. Reassure properly performing staff that their efforts are not being undermined;
7. Provide effective dispute resolution and prevent escalation;
8. Provide reassurance to your Traffic Commissioner that compliance issues will be picked up and dealt with without their ‘assistance’.
. . . and this would be all true but very happily all these factors are also likely to improve the financial performance and security of your business
As well as the obligations directly related to running vehicles, operators must also comply with their obligations to their staff.
Perhaps the most basic obligation to staff is contained in section 3(1) of the Employment Rights Act 1996 – and that is the right to have a written contract. When an employee begins work, the operator must give the employee a written statement of particulars of employment (usually considered to be the contract of employment). This statement should contain any disciplinary rules and/or procedure applicable to the employee, referring to any document containing these rules. The statement should also specify to whom to appeal a disciplinary decision. Employees should be told to whom they should address a grievance. Any written procedure should be made readily available to all employees. If the operator does not give a written statement, that employee can go to the employment tribunal and get a monetary award.
If the operator has failed to comply with the ACAS Code of Practice on Disciplinary and Grievance Procedures (ACAS CoP) and the employee issues a claim in the tribunal, the judge is entitled to enhance any award against the operator by up to 25%. Therefore, it is good sense to have procedures in place that complies with the ACAS CoP.
Did you know that staff have a right to have a detailed written contract?
The Disciplinary procedure
What does it cover?
A disciplinary procedure may cover issues such as absence, time keeping, conduct, health and safety and gross misconduct. More specifically for operators, it could cover drivers’ checks, tachograph checks and taking regular rest breaks. An operator is entitled to identify specific behaviour that it regards as gross misconduct and might warrant dismissal for one offence. There are many common examples such as theft/fraud, gross insubordination, and violence in the workplace. Specific examples for operators might include early running and wrongful interference with a compliance investigation.
You can tailor your disciplinary procedure so it suits your business
When facing an issue of potential misconduct, it can be best to resolve issues informally. For minor or one-off issues such as timekeeping and (possibly) a failure in respect of a drivers’ defect check an informal discussion may be enough to resolve the situation. It may be the case that the employee is having problems in his/her personal life which is impacting on his/her work. The individual may also require more training or support. It is up to the manager to consider the best way to deal with an employee informally but the focus should be on improvement. However, some issues may continue or be too serious to deal with in this way and disciplinary action will need to be taken.
Your disciplinary procedure should include details about the following steps which should be followed if you continue to have a concern about an employee’s behaviour and/or performance.
1) Establish the facts of the issue
You should promptly and fairly investigate the issue in order to establish the facts. This may be through informal discussions or meetings with the employee. This may or may not lead to disciplinary action being taken. Assuming resources allow, in cases of misconduct different people should carry out the investigation and disciplinary action.
2) Send a letter to the employee setting out the issue
If it is decided that disciplinary proceedings should begin, the employee should be notified of this in writing. The letter should contain details about the alleged misconduct or poor performance and its possible consequences. For example, if a driver has allegedly been offensive to a passenger, details of when this occurred should be given. Any copies of written evidence/witness statements should be provided to the employee, including the customer complaint, and witness evidence, and CCTV evidence if available. The letter should also give details of the time and place for the disciplinary meeting and advise the employee of their right to be accompanied.
3) Hold a meeting to discuss the issue
You should allow the employee to prepare for the meeting but the meeting must be held without unreasonable delay. At the meeting you should explain the issue and present the evidence to the employee. The employee should be given the opportunity to answer the case, ask questions, present evidence and call relevant witnesses. Advance notice of any witnesses should be given from both sides. Employees have a statutory right to be accompanied by a colleague or a trade union representative. However, the person accompanying the employee does not have the right to answer the questions on behalf of the employee.
The law is clear – dismissal should be a step of last resort in very serious or repeated cases
4) Make a disciplinary decision
You must inform the employee of any decision in writing as soon as possible. In the event of misconduct or poor performance it is unusual to move straight to dismissal, which must only be done in exceptionally serious cases, or following earlier warnings.
5) The right to appeal
The employee has the right to appeal against the decision. Appeals should be heard promptly at an agreed time and place. Employees should set out their grounds for appeal in writing and notify you. The appeal should be dealt with by a different person where possible to ensure fairness. Employees have the right to be accompanied and should be informed of the outcome in writing as soon as possible.
If the misconduct is sufficiently serious, you may want to suspend the employee pending investigation. You must be sure that there were reasonable grounds for suspension otherwise you could be in breach of your legal obligations. It is a serious step that should be avoided wherever possible. If you make the decision to suspend, it should be for the minimum amount of time and be kept under continuous review. It is usual to ask the employee not to speak to any colleagues or visit the premises whilst suspended. You may also wish to cut off electronic communications.
ACAS says that you might be able to, where you need to do so, to do a proper investigation
Records should be made of all disciplinary proceedings and should include details of any allegations, details of the investigation, the results of the investigation, decisions made and the reasons why. Copies of correspondence should be sent to the employee and notes from any meetings. Records should be kept and may have to be made available to the employee if claims are taken further.
The job isn’t done until the record is made
It is also important for you to have a grievance procedure. Unresolved grievances can lead to poor relationships, disputes and poor performance. A written procedure provides guidance to employees, promoting fairness and transparency in the work place.
What does it cover?
The procedure may cover any issue that may cause a grievance such as discrimination, bullying, health and safety, rostering and allocation of driving duties, and the general working environment. You may wish to have separate procedures for more sensitive issues such as harassment or bullying.
Resolving grievances informally
Employees should aim to resolve any issues with their employer informally where possible. This allows any issues to be resolved quickly and privately. Details about who to report to should be included in a grievance policy.
Resolving grievances formally
If employees do not feel that their issue has been or cannot be resolved informally they should follow the operator’s grievance procedure. A grievance procedure would usually contain information about the following steps:
Sending a letter of complaint;
The grievance meeting ;
The decision; and
The right to appeal
Grievances and disciplinary action
An employee facing disciplinary action can react by taking out a grievance. Usually that is accompanied by a request to hold off the disciplinary process until the grievance is complete. The ACAS CoP makes it clear that the employer does not necessarily have to do this.
Mediation may be an option when parties would prefer to have an issue resolved independently. However, unless otherwise agreed, any decision made in mediation is not binding and the parties have to come to an agreement themselves. You may wish to include this option in your disciplinary/grievance procedures but bear in mind that it may not be suitable for all cases.
Review of procedures
Any procedures and policies should be kept under review to ensure they remain relevant to your business and up to date with legal requirements. If any changes are to be made you may wish to consult employees and workplace representatives first.
Resolving problems in the workplace informally is usually preferable to legal action, but not always possible. It is essential to have fair and consistent disciplinary and grievance polices in place to ensure smooth running of your operation. This will create a good working environment, ensure that you have control over your company, improve compliance, and ultimately make your business more secure.
Mr B worked for A Ltd as a driver. He had concerns about aspects of health, safety and training at the depot throughout his employment. He said that he had raised his concerns with the deputy transport manager, who in response sent him away and swore at him. He presented a grievance letter to his operator raising issues about health and safety matters, lack of training, his ill treatment by the deputy transport manager, and a complaint that the transport manager disliked him because he had raised training matters. A Ltd’s written grievance procedure provided for grievances to have been dealt with by the section manager; but if the complaint was by a section manager, it was to have been dealt with by the logistics director. It also stated that if an aggrieved employee wished to appeal, they had to inform the next level of management, who would organise a meeting and make a final decision. The grievance was instead dealt with by the managing director for the region who accepted the grievance saying that training and health and safety maintenance could have been improved. However, he accepted the deputy transport manager’s denial that he had treated Mr B badly. Mr B appealed against the grievance decision, noting that no action had been taken against his colleagues. The managing director chaired the appeal meeting, which lasted just 20 minutes. He told Mr B that he had reached his final decision and that Mr B had to accept it. Mr B resigned within a week.
Mr B brought claims before the employment tribunal. He said that the denial of a grievance appeal was capable of amounting to or contributing to a breach of the implied term of trust and confidence. Although the Tribunal dismissed the claim, on appeal, the Employment Appeal Tribunal agreed with him and held that an operator’s failure to provide an impartial grievance appeal could amount to a breach of the implied term of trust and confidence and form the basis of a constructive dismissal claim.
Written by Andrew Banks and Peter Woodhouse of Stone King’s Transport Team
Efficiency, understanding and communication
This article is for guidance only. The law and practice referred to has been paraphrased or précised and should not be construed or relied upon as legal advice.