Statutory disciplinary procedures

Most workplace procedures will have in place fuller procedures based on the ACAS Code of Practice on Grievance and Disciplinary Procedures. If so, employers should use the fuller procedures, but must ensure that these procedures comply with the statutory minimum. TSSA reps should check existing procedures to be sure that they comply with the minimum three step procedures.

When do the statutory disciplinary and dismissal procedures apply?

The statutory three-step disciplinary and dismissal procedure will nearly always apply to dismissal cases. The three step procedure will apply in many redundancy cases (except where 20 or more staff are being made redundant) and where fixed term contracts are not renewed. It will also apply to retirement cases where the employee has not reached the age of 65 or the normal retirement age for the company.

The statutory procedure also applies where an employer considers taking disciplinary action against an employee, other than issuing an oral or written warning or suspending them on full pay while an investigation is carried out. The procedure should however be followed where an employee is suspended but not on full pay (for example, where the employee continues to receive their salary but loses out their bonus or any other financial benefits).

In most TSSA workplaces, existing procedures are likely to cover oral and written warnings, suspensions and investigations. If so, these procedures should still be followed in full.

What does the standard three step disciplinary and dismissal procedure involve?

1. Statement of grounds for action and invitation to a meeting

The employer must send the employee a written statement setting out the reasons why they are considering dismissing or disciplining the employee, (for example the alleged misconduct; the reasons why the employer thinks an employee is not doing their job properly; or the reasons why the employer is proposing to make the employee redundant or not to renew their fixed term contract).

The employer must invite the employee to a meeting to discuss the issue.

2. The meeting

The employer must hold a meeting to discuss the reasons why they are considering disciplining or dismissing the employee

The employee has the right to be accompanied at the meeting.

The employee should have had a reasonable opportunity to consider their response to the employer’s statement before the meeting. The employer must have informed the employee of the basis of any allegations or reasons why the employer is considering disciplining or dismissing the employee. No dismissal or disciplinary action should take place before the meeting.

The meeting should be organised at a reasonable time and in a convenient location and both the employer and the employee must take all reasonable steps to attend. The employee must be given the opportunity to state their case at the meeting.

After the meeting the employer must inform the employee about the decision and of their right to appeal if they are not satisfied it.

3. The appeal

If the employee chooses to appeal, they must inform the employer who must invite them to a further meeting.

The employee has the right to be accompanied and both the employer and employee must take all reasonable steps to attend this meeting.

The appeal meeting need not take place before any dismissal or sanction takes effect. Where possible, the appeal should be dealt with by a more senior manager than attended the first meeting (unless the most senior manager attended the first meeting).

After the meeting the employer must inform the employee of their final decision.

Gross misconduct dismissals and the modified dismissal procedure

In the vast majority of cases of alleged gross misconduct, employers must use the standard three-step disciplinary and dismissal procedure. However the new legislation permits employers to use a shorter (modified) procedure where a number of conditions apply:

 The employer dismissed the employee without notice because of their conduct.
 The employer dismissed the employer as soon as the employer became aware of the conduct or immediately afterwards.
 A tribunal would find that an employer was justified in dismissing an individual without notice.
 It was reasonable for the employer to dismiss the employee without carrying out any further investigation the circumstances of the employee’s conduct.

There are extremely few cases where the modified procedure will apply. One example may be where an employer actually witnesses an employee seriously assaulting a colleague. But even in such cases it could be argued that an employee should be suspended on pay pending an investigation. Employers would be best advised never to use the modified procedure.

1. Statement of grounds for action

The employer must send the employee a written statement which sets out:

 The employee’s alleged misconduct which led to the dismissal
 the reasons for thinking at the time of the dismissal that the employee was guilty of the alleged misconduct; and
 The employee’s right to appeal against dismissal

2. The appeal

If the employee wishes to appeal, they must inform the employer.

The employer must then invite the employee to attend a meeting, at which the employee has the right to be accompanied.

The employer and employee must take all reasonable steps to attend the meeting.

Where possible, the appeal should be dealt with by a more senior manager than attended the first meeting (unless the most senior manager attended the first meeting).

After the meeting the employer must inform the employee of their final decision.

When are employers and employees not required to follow the statutory disciplinary or dismissal procedures?

There are several situations where the employer is not be required to follow either the standard or modified disciplinary and dismissal procedures before dismissing or taking disciplinary action against an employee. These include:

 In cases of ‘collective’ dismissals
 Where other specified reasons for dismissal
 Where interim relief is being sought
 Where multi-employer procedures apply and are used
 Where the general exemptions apply.

a) ‘Collective’ dismissals

In collective redundancy cases where the employer is considering making 20 or more employees redundant within a 90 day period and they are under a duty to consult officials from recognised trade union or workplace representatives.

Where employers seek to change terms and conditions of employment by dismissing employees and then offering to re-engage them on new contracts.

In most circumstances, where the reason for a dismissal was that the employee was engaged in official or unofficial industrial action. Employers are required to follow the statutory procedures where an employer is considering selectively dismissing some strikers or where all strikers are dismissed but some and not all are offered re-engagement within three months of the dismissal.

b) Other reasons for dismissal

Where an employer’s business suddenly and unexpectedly ceases to function and it would be impractical for them to employ any employees. Examples provided by the DTI on where this might apply include where the building burns down. This exemption should not apply to cases of insolvency.

Where an employee could not continue to work in the position which they held, because to do so would contravene a statutory duty, for example, because of a medical condition.

c) Interim Relief

Under section 128 of the Employment Rights Act 1996, an employee can apply for interim relief when claiming that they were dismissed unfairly for certain reasons (trade union membership or activities, health and safety, occupation pension trustee, business transfer or redundancy representation, working time, protected disclosure, or right to be accompanied).

It should be noted that this exemption applies only to the appeal stage of the statutory dismissal and disciplinary procedures - it will be necessary to follow the earlier steps in full.

d) Negotiated Multi-employer procedures

In some industries, employers and trade unions have negotiated sectoral or industry level agreements which include detailed dispute resolution procedures.

If a disciplinary procedure has been agreed by two or more employers or an employers’ association and at least one independent trade union which provides the right for employees to appeal to an external panel in cases of dismissal or other disciplinary action, and an employee uses this right to appeal to such a body, then employers and employees will not be required to complete the appeal stage in the statutory disciplinary procedures.

It should be noted that this exemption applies only to the appeal stage of the statutory dismissal and disciplinary procedures - it will be necessary to follow the earlier steps in full.

Disciplinary and dismissal procedures and good practice

Employers will need to review existing procedures to ensure they meet the legal minimum set out in the Disputes Resolution Regulations and Employment Act 2002. TSSA reps will want to ensure that jointly negotiated procedures are not weakened and that the good practice of many existing procedures is not undermined. The ACAS Code of Practice and Handbook provides very clear and helpful guidance on drawing up and operating procedures.

Further information

Information and advice leaflets are available on the TUC website at www.tuc.org.uk and at www.worksmart.org.uk.

The ACAS Code of Practice on Disciplinary and Grievance Procedures is at www.acas.gov.uk.

DTI guidance on the Dispute Resolution Regulations can be found at www.dti.gov.uk.