Disciplinary, Grievance and Performance Management Advice

Managing Staff Disciplinary Actions

Having clear and fair disciplinary policies in place will assist when disciplinary problems arise. Some behaviour may constitute gross misconduct and result in summary dismissal. However, whenever you handle a disciplinary with an employee, you must deal with the issues fairly and in accordance with employment legislation. Employers should also be mindful of the ACAS Code of Practice and supporting guidance which can assist in following a fair procedure.

Disciplinary procedures are a formal set of processes that employers must follow when dealing with an employee’s conduct in the workplace and/or performance issues. The procedure must be easily available for employees to access and refer to. Disciplinary procedures must be handled fairly and should follow the following series of steps:

1. Investigation;
2. If there is a case, an invitation to a meeting;
3. Holding the meeting with the employee;
4. Making the decision; and
5. Possibility to appeal the decision.

When conducting a disciplinary procedure, you should communicate regularly and clearly with the employee involved and it is important that the disciplinary action is reasonable in respect of the relevant misconduct. Careful thought must always be given if dismissal is a possible outcome, and the employee must always be told ahead of any meeting that dismissal is a possible outcome. Equally, the appeal process should be clearly set out to the employee. A right of appeal is of paramount importance.

If you need guidance on how to handle a disciplinary process, or would like one of our expert solicitors to be actively involved in order to ensure that the correct procedures are followed and your exposure to risk minimised, please get in touch with a member of our team.

Managing Staff Grievances

Having a clear and concise grievance procedure will ensure that you take the right steps to address grievances. As with disciplinaries, employers should also carefully follow the ACAS Code of Practice and supporting guidance. Failing to follow this procedure could increase the prospects of an employee bringing a claim in the Employment Tribunal for constructive unfair dismissal and/or, for example, alleged discrimination. Failure to follow the ACAS guidance could increase the compensation you’re required to pay to the employee, should their claim be successful.

Grievance procedures should be handled fairly and discreetly, following a series of steps which should be outlined in your grievance policy:

1. Informal discussions with the employee;
2. A formal grievance process, ensuring that detailed and written records are kept;
3. Thorough investigation of the grievance, consulting with witnesses and holding a meeting with the employee;
4. Making the decision and providing an outcome; and
5. Giving the opportunity for appeal.

Our Employment Team regularly helps businesses of all sizes to conduct what are often complex and challenging grievance processes. If you would like support or advice on the process you should follow and how to fairly handle the grievance procedure, please get in contact with a member of our Employment Team.

Performance Management

As an employer, you should aim to create an environment where performance management is approached as an opportunity for improvement and up-skilling, reviewing technical knowledge and business contributions.

Good performance management is often critical for the commercial success of a business. By putting performance management measures in place and discussing these measures with employees, they know what is expected of them and how they will be reviewed. Employees should be set specific, measurable and achievable goals against which they will be measured, with proper support and training measures so employees feel motivated to, and capable of, achieving their goals.

Performance management is not a singular activity, but rather an ongoing process that should be approached with positivity and encouragement in order to promote employee motivation and engagement. Performance management may be through appraisals and it is in the best interests of the employer to have objective criteria for assessing performance.

Where an employee is underperforming, you should ensure that you treat the employee fairly and give them the opportunity to improve. This is an ongoing process, and it is beneficial to clearly document where the employee is underperforming and what they can do to remedy the situation. Whilst capability is a fair reason to dismiss an individual, the best way to mitigate any risk to the business is to show that you have supported the employee in performing to a satisfactory standard. Failing to do so may expose your business to unfair dismissal claims.

Dismissals

Dismissing an employee should only be done when it is reasonable to do so, and consideration should be given to alternative solutions. When dismissing, an employer should note the five fair reasons for dismissal:

• Conduct;
• Capability;
• Redundancy;
• Illegality; or
• Some other substantial reason.

Each fair reason for dismissal will have its own process to be followed in order to ensure that the decision to dismiss is fair. Whenever a dismissal takes place, employers vulnerable to Employment Tribunal claims for unfair dismissal (either for the dismissal itself, or for following an unfair process), should seek legal advice in order to ensure the proper procedures are followed.