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Marc Jones - Leading Employment Law Solicitor - Marjon Law - Specialist Employment Lawyers

EMPLOYMENT LAW ADVICE

A guide on employment law advice from the employment law experts

Marjon Law, specialist employment lawyers is owner-led by Marc Jones, who is ranked and recommended in legal publications as a leading employment law solicitor, with over 20 years of experience practising solely in employment law.

If you would like urgent employment law advice, please contact us as soon as possible.

What types of employment law advice are there?

The most common areas we provide employment law advice on are:

grievances
disciplinaries
capability (performance)
appeals.

Grievances

What is a grievance?

A grievance at work is a concern, problem, issue, or complaint that an employee may wish to raise with an employer.

The grievance could relate to most things in the workplace, such as:

a change in terms and conditions of employment
erosion of a role
lack of support
unfair or unreasonable behaviour of a work colleague (eg bullying or harassment)
unfair or unwarranted treatment by an employer (eg setting-up an employee to fail)
unfair processes (eg commencing a disciplinary process without a fair reason).

A grievance can be raised at any time, including in response to disciplinary, redundancy or performance processes.

A grievance can be informal or formal. An informal grievance will normally be decided without following a process.

Why would an employee raise a formal grievance?

Raising a formal grievance will mean that an employer must follow a process, which would normally be:

holding a grievance meeting with the employee
investigating the employee's grievance
confirming the outcome of the grievance in writing
providing an appeal against the grievance outcome.

The timing of raising a formal grievance can be crucial. Whether an employee is in the middle of a redundancy process, facing a performance improvement plan, or a disciplinary process, the grievance process allows the employee from formally setting out their complaints before the employer takes further action. This can often stop the employer's process and allow the grievance to be investigated, and may frustrate the employer’s ability to proceed in the way they had originally intended. It can also act as a platform for negotiating an exit package and agreeing to a settlement agreement.

An employee may also want to raise a formal grievance as a stepping stone to commencing Acas early conciliation and then bringing an employment tribunal claim.

What if an employee does not raise a grievance?

The only downside in not raising a formal grievance will be that an employment tribunal can reduce any compensation by up to 25% if the tribunal believes that the dispute could have been avoided. However, if an employee can show that raising a grievance before presenting an employment tribunal claim would have made no difference then there may be a lesser percentage reduction or none at all.

How does an employee raise a grievance?

If the complaint cannot be resolved informally, an employee should raise a formal grievance in writing without unreasonable following an employer’s grievance policy or procedure. If there is no formal grievance policy or procedure in place, an employee should submit the grievance to their manager (or more senior manager if the grievance relates to their manager) or human resources adviser (if there is one).

The grievance should set out in as much detail as possible why the employee is complaining.

How should an employer deal with an employee's grievance?

An employer should follow the Acas code of practice on disciplinary and grievance procedures:

acknowledge the grievance
carry out any necessary investigations in relation to the employee's complaint to corroborate the evidence
invite the employee to attend a grievance meeting without unreasonable delay
allow the employee to be accompanied to a grievance meeting by a work colleague or trade union official
hold a grievance meeting with the employee in person or by video (if the employee consents)
confirm the grievance decision in writing
allow the employee to appeal the grievance decision.

What happens if an employer doesn’t deal promptly with the grievance (or at all)?

There is an implied term in a contract of employment between employer and employee that an employer will reasonably and promptly provide an employee with the opportunity to seek redress for any grievance. A failure to deal with a grievance properly (or at all) might amount to a breach of the implied term of trust and confidence entitling an employee to resign and claim constructive dismissal . There are strict time limits when claiming constructive dismissal and legal advice should be taken as soon as possible (preferably from Marjon Law).

Disciplinaries

What is a disciplinary?

A disciplinary is part of the process when an employer wants to address an employee’s conduct or capability. The types of conduct and capability can include:

refusal to obey a legitimate instruction
absence without permission
persistent absence
poor timekeeping
failure to carry out work duties adequately
poor work performance
improper use of the employer's equipment
breaches of the employer’s rules, procedures, policies, or practices.

More serious conduct matters are referred to as gross misconduct and can include:

acts of dishonesty where your conduct affects an employee's ability or suitability for continued employment with an employer (eg theft, fraud, the deliberate falsification of time sheets and expenses claim forms or failure to disclose correct information on an application form or CV)
serious insubordination or rudeness to clients, customers or suppliers
deliberate damage to, or misuse of, the employer's property
negligence resulting in financial loss to the employer
serious breaches of health and safety
physical assault or aggressive behaviour
indecent or immoral acts
being under the influence of alcohol or illegal drugs during work hours
breaches of confidentiality (other than minor breaches)
discrimination, harassment and/or bullying
breaches of the employer’s rules, procedures, policies, or practices (other than minor breaches)
bringing the employer or any of its directors or shareholders into serious disrepute.

The word “disciplinary” typically refers to the process, which would normally be:

investigating the allegation(s) against an employee
informing the employee of the allegation(s) against them
holding a disciplinary hearing allowing the employee to respond to the allegation(s) against them
confirming the outcome of the disciplinary in writing
providing an appeal against the disciplinary outcome.

What is a typical disciplinary procedure?

An employer should have a written disciplinary policy or procedure. If not, an employer should follow the Acas code of practice on disciplinary and grievances.

A poorly handled disciplinary process can result in an employment tribunal claim for unfair dismissal.

A typical procedure will:

set out the various levels of disciplinary action (eg informal chat, verbal warning, written warning, final written warning, dismissal, and alternative sanctions to dismissal) and how that stage of the process is reached
describe what behaviour constitutes gross misconduct, which due to its seriousness, would bypass the various levels of disciplinary action and if found proven could lead to dismissal
provide for suspension from work in certain circumstances (eg an allegation of gross misconduct)
set out in writing the allegation(s) against the employee
invite the employee to attend a disciplinary hearing without unreasonable delay
allow the employee to be accompanied to a disciplinary hearing by a work colleague or trade union official
hold a disciplinary hearing with the employee in person or by video (if the employee consents)
carrying out any further investigation into the allegation(s) against the employee
confirm the disciplinary decision in writing
allow the employee to appeal the disciplinary decision.

When can an employer suspend an employee?

The right of an employer to suspend an employee is normally set out in the employee's employment contract or in the employer's staff/employee handbook. Even if there is no right to suspend an employee, providing there is a sufficiently serious reason for doing so and the employee suffers no detriment (eg they continue to receive full pay and other usual benefits) then most employers will have acted reasonably.

The main reasons why an employer may want to suspend an employee are:

to stop the employee from carrying out the conduct that is being alleged
to stop the employee from interacting with other employees or clients/customers of the employer, which may otherwise cause a detrimental impact on the business
to enable the employer to properly investigate the allegation(s) against the employee without any hindrance.

Ultimately it is for an employer to show that it had a reasonable and proper cause to suspend an employee. However, even if an employer can show this, if there is a detrimental impact on the employee, suspension could amount to a breach of the implied term of trust and confidence entitling an employee to resign and claim constructive dismissal .

Suspension should be used with caution, even where an employer has a contractual right to suspend an employee pending an investigation (eg where the evidence against an employee is weak) and alternatives should be considered instead, such as a transfer to a different department or a short period of paid leave.

The suspension should be for the shortest period of time whilst the investigation takes place, and an employee should be updated as to how long the suspension is likely to last. Indeed, the Acas code of practice on disciplinary and grievances states that suspension should be:

as brief as possible
kept under review
not be used as a disciplinary sanction.

If an employer has suspended an employee without any reasonable grounds to do so or takes an inordinate amount of time in carrying out an investigation (without explanation or regular updates to determine if the suspension is still necessary), which would make it impossible for an employee to return to work, this could also amount to a breach of the implied term of trust and confidence entitling an employee to resign and claim constructive dismissal .

Can an employee challenge an employer's decision to suspend them?

Yes, an employee can challenge their suspension if they consider it to be unreasonable and/or raise a formal grievance. However, if there were reasonable grounds to suspend an employee it is unlikely the suspension would be lifted but it will provide a formal basis for the objection. This may be relevant if there are other factors leading to a breach of the implied term of trust and confidence giving rising to a claim of constructive dismissal.

In certain cases, an employee may be able to apply to the civil courts for an injunction to prevent suspension. This would only apply where the suspension is in breach of an employee's contract of employment, or where an employee is in a professional role, and their suspension would be detrimental to their competence and reputation.

What will happen at a disciplinary hearing?

At the disciplinary hearing, the employer will put its case, by presenting evidence in support of the allegations against the employee, which could include documents, emails, messages, and witness statements from colleagues. The employee then has the opportunity to respond to the allegations and put forward their own case and present their own evidence to support their arguments. The employee (or their companion) would normally be permitted to ask any questions and to raise objections to evidence or information provided by the employer.

What happens after the disciplinary hearing?

After considering all the evidence presented, the employer would decide if the allegations are proven, and if so, whether or not any disciplinary action will be taken against the employee (see above). In the absence of a written procedure setting out the various levels of disciplinary action, this could be:

for misconduct - a written warning
for serious misconduct - a final written warning
if the misconduct is repeated despite a 'live' written warning - a final written warning
if the misconduct is repeated despite a 'live' final written warning - dismissal with notice
for gross misconduct - summary dismissal without any prior warnings and no notice.

The decision should be confirmed in writing with a right to appeal the decision.

Capability

What is capability?

Capability refers to the skills, ability, aptitude and knowledge we have in relation to the job that an employee is employed to do.

Lack of capability, will in most cases lead to unsatisfactory performance in a job role role. However, the key distinction is that a lack of capability is usually unintentional. On the other hand, disciplinary issues is linked to behaviour that falls below the required standard and can be intentional.

In some cases, it can be difficult to determine whether poor performance is due to incapability, a lack of effort or a mixture of the two.

Unlike grievances and disciplinaries, there is no code of practice governing what a capability procedure should include.

To deal with a capability issue, an employer should follow a procedure that encourages an employee to improve.

A capability procedure could include:

identify where the employee is failing to meet the level of performance
invite the employee to attend a capability meeting
hold the capability meeting - provide the employee with a performance improvement plan (PIP) setting out what is expected of the employee with timescales for reviewing the PIP (eg 1, 2 or 3 months) [stage 1]
confirm the outcome of the capability meeting in writing and any sanctions should the employee fail to meet the requirements of the PIP (eg written warning, final written warning, demotion, dismissal, or transfer to another department)
confirm the date for reviewing the PIP at a further capability meeting
invite the employee to attend a further capability meeting (if there is no improvement and if a disciplinary sanction is contemplated eg written warning, allow the employee to be accompanied at the meeting by a work colleague or trade union official)
hold the capability meeting [stage 2]
confirm the outcome of the capability meeting in writing and allow the employee to appeal any disciplinary decision
confirm the date for reviewing the PIP at a further capability meeting
invite the employee to attend a further capability meeting (if there is no improvement and if a further disciplinary sanction is contemplated eg final written warning, allow the employee to be accompanied at the meeting by a work colleague or trade union official)
hold the capability meeting [stage 3]
confirm the outcome of the capability meeting in writing and allow the employee to appeal any disciplinary decision
confirm the date for reviewing the PIP at a further capability meeting
invite the employee to attend a further capability meeting (if there is no improvement and if a further disciplinary sanction is contemplated eg dismissal, allow the employee to be accompanied at the meeting by a work colleague or trade union official)
hold the capability meeting [stage 4]
confirm the outcome of the capability meeting in writing and allow the employee to appeal any disciplinary decision.

Some employers may adopt a different procedure with say 2 or 3 stages only.

What is a performance improvement plan (PIP)?

A performance improvement plan (PIP)is a process frequently used by an employer where an employee has not performed to a satisfactory standard set by an employer. It is usually set out in writing for the employee to acknowledge and accept.

A PIPs main function is to provide a structured approach to improvement, for employees who aren’t achieving their full potential. While a PIP is not strictly a punishment and they should not be implemented lightly.

Some employers implement PIPs as a way of helping and retaining employees. Whereas some employers use PIPs, as a stepping stone to dismissal, as in reality the decision has been made that an employee is no longer right for the role.

A PIP should:

be developed and approved by the employee’s manager (and HR if applicable)
clearly and objectively set out where the employee is failing
clearly state the steps the employee should take to improve their performance
set out the improvement expected of the employee using measurable objectives
state whether any support or training will be provided
provide for the timescales and frequency of reviews (eg 1, 2 or 3 months)
make clear what sanctions there will be should the employee fail to meet the requirements of the PIP.

By following a PIP, an employer is seeking to show that a correct process has been followed and that an employee has been given a reasonable opportunity to improve. If an employee fails a PIP, after an employer correctly follows a reasonable process, it will be difficult for an employee to argue that they have been unfairly dismissed.

In most cases, an employee has no control over capability issues. Therefore, a PIP may be perceived by an employee to be without foundation and this could amount to a breach of the implied term of trust and confidence giving rising to a claim of constructive dismissal. For example:

there is a personality clash between an employer and their manager
an employee has time off due to illness, which has affected their performance and support has not been provided
an employee with a disability impacts their ability to do their job and adjustments are not provided
to force the employee to leave rather than face the indignity of a PIP.

Where a PIP has been implemented and an employee has a disability, this could amount to discrimination arising from disability and failure to make reasonable adjustments.

What should happen at the capability meeting?

During a capability meeting relating to an employee's performance, an employee should be:

informed of the shortfall between their performance and the required standard
given a reasonable opportunity to consider their response to that information
told by the employer the root cause of the poor performance and to determine any remedial action (ie a PIP)
set a monitoring period of improvement (normally 1 to 3 months) for the employee to reach the required standard
informed what the employer will do to assist the employee during the monitoring period
arrange a date for a further capability meeting.

After the capability meeting, the employer should confirm the outcome in writing and provide the employee with a right of appeal against any sanction.

What if an employer does not have a capability procedure?

If an employer does not have a capability procedure, then it is likely that they will follow a disciplinary procedure instead.

Appeals

What is an appeal?

An appeal is simply challenging a decision that has been made by an employer. This can be against:

grievance decisions
disciplinary decisions
capability (performance) decisions
redundancy decisions.

Grievance decisions

If an employee disagrees with a grievance decision and has reasonable grounds to challenge it then there are 3 options:

appeal the decision if they wish to remain with their employer, which in most cases may be the sensible option
if there is a breakdown in trust and confidence with their employer due to the way the grievance has been handled (eg the facts do not support the decision) an employee could resign and bring a claim for constructive dismissal or negotiate an exit package as an alternative to an employment tribunal claim.

Disciplinary decisions

Again if an employee disagrees with a disciplinary decision and has reasonable grounds to challenge it then there are 3 options, which are the same as above (see grievance decisions).

If an employee has been dismissed then normally an employee should appeal the decision to have the decision overturned and return to work. However, if an employee does not want to continue working for an employer and they have been employed for 2 years then an appeal could backfire as if it is successful the dismissal will 'vanish' and an employee will no longer be able to bring a claim for unfair dismissal.

Capability decisions

Again if an employee disagrees with a capability decision and has reasonable grounds to challenge it then there are 3 options, which are the same as above (see grievance decisions).

Redundancy decisions

The Acas code of practice on disciplinary and grievances does not apply to redundancies. However, the ACAS code of practice does say employers should be encouraged to offer an appeal in a redundancy situation. Furthermore, an employment tribunal could still find a dismissal to be unfair when having regard to all the relevant circumstances denying an appeal fell outside the band of reasonable responses for a reasonable employer to take.

What is the appeal process?

An employer should inform an employer of their right to appeal a decision in writing. If they do not and the employee has been employed continuously for 2 years, this could result in a successful claim of unfair dismissal.

In cases, where the Acas code of practice on disciplinary and grievances, if an employee fails to appeal a decision or an employer fails to provide a right of appeal, this could lead to an employment tribunal increasing an award for unfair dismissal by up to 25%.

A typical timeframe for appealing a decision is within 7 to 14 working days of receiving the written decision.

An appeal should set out the grounds on which the appeal is made.

On receipt of the grounds of appeal, an employer should invite an employee to attend an appeal meeting and allow them to be accompanied at the meeting by a work colleague or trade union official. The appeal meeting does not have to be in person and can be a virtual meeting.

Depending upon the nature and stated grounds of the appeal, the appeal meeting could be either:

a full rehearing with the evidence being presented and considered afresh
a review of the original decision based on the evidence presented.

The outcome of the appeal will typically take one of 3 forms:

the original decision will be upheld in its entirety
the original decision will be overruled in its entirety
the original decision will be wholly or partly confirmed but a less severe sanction will be substituted for that originally imposed.

The outcome of the appeal should be notified to an employee in writing following the appeal meeting. There is not normally a further right of appeal.

What else can Marjon Law provide employment law advice on?

We have extensive experience of:

The material contained in this web page is provided for general purposes only and does not constitute legal or other professional advice. Appropriate legal advice should be sought for specific circumstances and before action is taken.