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The IDS HR Studies teamEditor: John RobertsonDeputy editor: Graham Brown

Researchers: Nadia HamiltonKatherine Heffernan Andrew SmithCaroline Smith

Contributors: Sally BuffardCaroline Green

Discipline, grievance and mediationIDS HR Study 906 • November 2009

Overview

3 The new Acas Code of PracticeA summary of the revised Code of Practice; transitional provisions; Q&A with George Boyce and Keith Mizon of Acas; frequently asked legal questions

8 Disciplinary proceduresScope and purpose; an informal approach; the formal process; examples of minor faults, misconduct and gross misconduct

20 Grievance proceduresWhat is a grievance?; an informal resolution; the formal procedure; collective grievances

26 Resolving disputes using mediationWhat is mediation; when to mediate; in-house or third-party mediation; the mediation process; Q&A with Keith Mizon of Acas; Q&A with David Liddle of The TCM Group

32 Case studiesEast Sussex County Council introduces mediationDerbyshire Constabulary seeks constructive solutions

overview

2 IDS HR Study 906 • November 2009

You say you want a resolutionEmployers put formal procedures in place to ensure that disciplinary issues and grievances are dealtwith in a consistent and fair manner. But, wherever possible, organisations try to arrive at aninformal resolution before going down a formal route that can prove costly and upsetting for allinvolved – and which can ultimately lead to an employment tribunal. A growing number ofemployers are now also using a mediated approach to dispute resolution – one that is conciliatoryrather than adversarial.

Repeal of the SDRPsThe statutory dispute resolution procedures(SDRPs) were repealed on 6 April 2009 – justfour and a half years after their introduction.The Government-commissioned review carriedout by Michael Gibbons1 found that theprocedures had contributed to an increase in thenumber of disputes. ‘Rather than encouraging earlyresolution,’ said Gibbons, ‘the procedures have ledto the use of formal processes to deal with problemswhich could have been resolved informally.’

‘Inflexible, prescriptive regulation has beenunsuccessful,’ concluded Gibbons. ‘Measures tobe used in future should be much simpler andmore flexible.’

New Acas Code of PracticeThe repeal of the SDRPs has led to a revision ofthe Acas Code of Practice on disciplinary andgrievance procedures. The new regime isdesigned to provide the greater flexibility calledfor by Gibbons and to allow for a common-senseapproach that was absent under the old system.Employers should no longer face findings ofautomatically unfair dismissal for proceduralfailings, although it is unlikely we have seen theend of legal arguments in this area.

To a certain extent, we have returned to thesituation pre-2004. As before, failure by anemployer or employee to follow the new AcasCode when handling workplace disputes will betaken into account by an employment tribunal.But the Code does now carry greater clout, as itgives an employment tribunal the power toadjust any award of compensation by up to 25per cent if it finds the employee or employer hasunreasonably failed to follow its directions.

Company practiceThe repeal of the SDRPs and introduction of therevised Acas Code appear to have had little

impact when it comes to the content ofemployers’ disciplinary and grievance procedures.In the course of our research, we examined thedisciplinary and grievance policies of 29 UKemployers. While the majority have reviewedtheir procedures in light of the new Code – orwere in the process of doing so – none have felt itnecessary to make substantive changes.

Informal resolution favouredIt is important that employers document theirformal disciplinary and grievance procedures tohelp ensure that all cases are dealt with fairly andconsistently. Moreover, disciplinary policiesestablish what behaviour is consideredunacceptable in the workplace and the possiblesanctions – ultimately, employees can bedismissed if their conduct fails to improve.

However, most organisations place an emphasison trying to reach an informal resolution to anyworkplace disputes wherever possible. Linemanagers are usually expected to address anyissues in their teams as and when they occur. Inthis way, problems can be tackled before theyescalate and before the team is adversely affectedby the intrusions of a formal investigation.Dealing with issues informally within theworkplace is widely accepted as the best approachand should provide the most positive outcome.

MediationWhere issues cannot be tackled informally byline managers, mediation can prove an effectivemeans of achieving a resolution. Unlike formalprocedures that result in a judgment as to who is‘right’ and ‘wrong’, mediation seeks to addressthe underlying issues and rebuild workingrelationships. But it should only be used as partof a holistic approach to conflict management. Itshould not be offered as an easy ‘out’ for linemanagers faced with difficult conversations.And employers may feel that sometimesconciliation is not possible, or even desired, andthat formal action is required.

1 Better dispute resolution: a review of employment dispute resolution in Great Britain. Michael Gibbons, March 2007

analysis

IDS HR Study 906 • November 2009 3

The new Acas Code of PracticeA revised Acas Code of Practice on disciplinary and grievance procedures came into effect on 6 April2009. A breach of the Code does not in itself precipitate legal proceedings, but a failure to abide byits provisions will be taken into account by a tribunal as evidence when considering a relevant claim.

Ability to adjust tribunal awardsEmployment tribunal panels now have thediscretion to adjust the awards made to eitherparty by up to 25 per cent if an employee oremployer has ‘unreasonably’ failed to complywith the Acas Code of Practice on disciplinary andgrievance procedures. The panel may increase anaward by up to 25 per cent if it feels an employerhas unreasonably failed to follow the guidance setout in the Code. Or, if it feels an employee hasunreasonably failed to follow the Code, it canreduce any award by up to 25 per cent.

Streamlined CodeThe new Acas Code is just 11 pages long. Itbegins with a foreword, which does not formpart of the statutory Code itself – tribunals arenot required to take it into account whendetermining a case. Following on from theforeword, the introduction to the Code providesdefinitions of disciplinary situations andgrievances, and establishes some key principlesfor designing formal procedures. This is followedby sections on how to handle disciplinary issuesand grievances in the workplace.

Informal action preferredThe non-statutory foreword to the Codecontains a number of aspirations. It states that‘employers and employees should always seek toresolve disciplinary and grievance issues in theworkplace’. It also suggests that many potentialdisciplinary or grievance issues can be resolvedinformally: ‘A quiet word is often all that isrequired to resolve an issue.’ Where formalaction is necessary, the Code sets out the ‘basicrequirements of fairness’ and is ‘intended toprovide the standard of reasonable behaviour inmost instances’.

AimsAcas states that the Code is designed to helpemployers, employees and their representativesdeal with disciplinary and grievance situations inthe workplace. It does not apply to redundancydismissals or the non-renewal of fixed-termcontracts on their expiry.

Developing proceduresAcas explains why employers should developformal procedures for handling disciplinary andgrievance procedures. It says that ‘fairness andtransparency are promoted by developing andusing rules and procedures for handlingdisciplinary and grievance situations’ and thatthese rules ‘should be set down in writing, bespecific and clear’. Notably, the Code states that‘employees and, where appropriate, theirrepresentatives should be involved in thedevelopment of rules and procedures’.

Dealing with issues fairlyThe introduction to the Code establishes someguiding principles for dealing with disciplinaryand grievance issues fairly. These are:

● Employers and employees should raise and deal with issues promptly and should not unreasonably delay meetings, decisions or confirmation of those decisions.

● Employers and employees should act consistently.

● Employers should carry out any necessary investigations, to establish the facts of the case.

● Employers should inform employees of the basis of the problem and give them the opportunity to put their case in response before any decisions are made.

● Employers should allow employees to be accompanied at any formal disciplinary or grievance meeting.

● Employers should allow an employee to appeal against any formal decision made.

The right to be accompaniedAcas reminds employers that workers have astatutory right to be accompanied by a fellowworker or trade union official where they arerequired or invited by their employer to attendcertain disciplinary or grievance meetings. Theymust make a reasonable request to theiremployer to be accompanied.

For the purposes of this right, disciplinaryhearings are defined as meetings that could



result in: a formal warning being issued to aworker; the taking of some other disciplinaryaction, such as suspension without pay,demotion or dismissal; and the confirmation ofa warning or some other disciplinary action,such as an appeal. A grievance hearing is definedas any hearing that concerns the performance ofa duty by an employer in relation to a worker.

Informal discussions or counselling sessions donot attract the right to be accompanied unlessthey could result in formal warnings or otheractions.

Handling disciplinary issuesFive pages of the Code are set aside to explainhow to handle disciplinary issues. In summary,the Code says that employers should:

Establish the facts of each case ● Carry out investigations without

unreasonable delay

● In misconduct cases, different people should carry out the investigation and disciplinary hearing

● There is no statutory right to be accompanied at a formal investigatory meeting, but

employers may allow this under their own procedures

● If considered necessary, suspension with pay should be for as brief a period as possible and kept under review; it should be clear suspension is not considered disciplinary action

Inform the employee of the problem● If there is a disciplinary case to answer,

inform the employee in writing; it is normally appropriate to provide copies of any written evidence

● Give details of the time and venue; advise the employee of his or her right to be accompanied

Hold a meeting with the employee● Hold the meeting without unreasonable delay

● Explain the complaint and go through the evidence

● Allow the employee to set out his or her case, answer any allegations, ask questions, present evidence and call witnesses

● Allow the employee to be accompanied at the meeting

Decide on appropriate action● Inform the employee of the decision in

writing

● Set out the nature of the misconduct or poor performance, and the change in behaviour or improvement in performance required (with timescale) in first or final written warnings; make the consequences of further misconduct within the set period for the warning clear

● A decision to dismiss should only be taken by a manager with the necessary authority

● Gross misconduct may call for dismissal without notice for a first offence; but a fair disciplinary process must still be followed

● Give examples of acts considered as gross misconduct in your disciplinary rules

Provide employees with an opportunity to appeal● Appeals should be heard without

unreasonable delay ● Appeals should be dealt with by a manager

not previously involved in the case, wherever possible

● There is a statutory right to be accompanied

● Employees should be informed of the result in writing as soon as possible

Transitional provisions

The statutory dispute resolution procedures continue to apply to disputes where the ‘trigger event’ occured before certain cut-off dates.

Disciplinary and dismissal casesThe trigger date for determining which regime applies to disciplinary action or dismissal is the date when the employer started disciplinary or dismissal action. The statutory procedures continue to apply if on or before 5 April 2009 the employer has:

● sent the employee a Step 1 statement or held a Step 2 disciplinary or dismissal meeting

● taken relevant disciplinary action against the employee● dismissed the employee.

GrievancesThe trigger for a grievance procedure is the date of the action about which an employee complains. If the action occurred before 6 April 2009, the statutory procedures continue to apply. They also apply if the action complained of began on or before 5 April 2009 and continues beyond that date where the employee has submitted a written grievance or an employment tribunal claim (an ET1):

● on or before 4 July 2009 if it relates to a jurisdiction with a three-month time limit (for example, constructive dismissal and discrimination claims)

● on or before 4 October 2009 if it relates to a jurisdiction with a six-month time limit (for example, equal pay or redundancy claims).

The transitional provisions mean that some claims to which the statutory procedures apply may not be heard by a tribunal until 2010.

Analysis


Q&A: The new Acas Code of Practice

We asked George Boyce, Senior Policy Adviser at the Acas Strategy Unit, and Keith Mizon, Director, Individual Dispute Resolution at Acas, to explain some of the reasoning behind the new Acas Code of Practice for disciplinary and grievance procedures.

How has the Acas Code changed?GB: The essence of the Code has remained the same. I suppose the most obvious change is that it’s now much shorter. We wanted the Code to focus on the key principles of handling individual workplace disputes. Employers can get more detailed guidance in the Acas guide: Discipline and grievances at work.

The biggest change is to the Code’s status – not what it says. The Code was always taken into account at employment tribunal, but now tribunals can adjust any awards made by up to 25 per cent for unreasonable failure to comply with it.

To a certain extent, we’ve pressed the reset button to take us back to the situation pre-2004. People weren’t happy with the prescriptive route that the SDRPs [the statutory dispute resolution procedures were introduced in 2004 and repealed in April 2009] had taken us down. Our aim now is to provide greater flexibility – to set down broad principles that employers and employees can work with to find solutions before issues escalate.

The definition of grievance is very open. Is this deliberate?KM: We’ve tried to avoid being prescriptive when it comes to definitions. I think a grievance can be broadly defined as occurring when the employee’s expectation of his or her employer has not been realised – and an employer might consider disciplinary or other action when its expectation of an employee has not been realised.

The Code no longer sets out how to handle grievances of former employees – was that intentional?GB: Yes. The Modified procedure brought in under the SDRPs to deal with former employees with a grievance focused largely on dismissals and acted as a precursor to tribunal. We didn’t want to go back into that territory. The new Code is designed to help employers handle discipline and grievances in the workplace.

KM: The Code is written for HR, employees and employee representatives – not lawyers. Its aim is to give practical advice for handling disputes in the workplace. The aim isn’t to set down rigid rules on how to handle dismissal.

GB: Under the SDRPs, the first thing people often thought about was how things would look at tribunal, rather than how the problem could be resolved. But the aim of the Code should be to help employers deal with difficult situations effectively – not simply how to cover themselves in the event of a tribunal. We have placed a large emphasis on encouraging employers to try to resolve discipline and grievance issues informally, where possible.

How do you think tribunals will apply the 25 per cent uplift?KM: We’ll have to wait for the first cases that fall under the new regime to reach employment tribunal to see how the Code is interpreted – and even then, to be clear, we may well need EAT decisions.

Why is mediation only in the foreword and not mentioned in the Code itself?GB: There was a lot of debate on that point. We ultimately took the view that if mediation was in the Code itself there was a possibility that an unscrupulous party might seek an adjustment at tribunal if it wasn’t offered or taken up for very good reasons. And also, we wanted people to endeavour to find a solution themselves before reaching for mediation.

KM: From an Industrial Relations perspective, the best way forward is for the parties involved in conflict to find a solution using the existing internal mechanisms without any external involvement. Of course, that’s not always possible and independent third-party assistance can help the parties reach an agreed solution. But it isn’t necessarily helpful to an organisation’s IR climate for third-party intervention to be a first resort.

We didn’t want to become prescriptive by building mediation into the code – that’s exactly what the new Code is trying to avoid. And anyway, mediation can really only work if both parties are fully on board. Mediation isn’t a silver bullet. It needs to be used appropriately within the context of a conflict management strategy – and sometimes other approaches may be more appropriate. In addition, when you agree to mediation, there is an implication that there is scope for movement. But from time to time either party – the employer or employee – might, for wholly legitimate reasons, decide the issue is something they simply can’t compromise on.

Do you think the Code will reduce the number of cases going to Employment Tribunal?KM: You can’t measure the success of the Code on the basis of a reduction in claims. That’s a simplistic measure and not particularly helpful. There are too many other factors that might have an impact. Claims are currently going through the roof because of the recession.

The Code should be seen as part of an attempt to change the culture of dispute resolution. That’s what Gibbons [the Government commissioned Michael Gibbons to review the SDRPs in 2006] was recommending. The aim is to help organisations and employees resolve problems in the workplace themselves – possibly with third-party help – and not through judicial determination. But changing culture is not something you usually achieve overnight.

GB: The Code is more about changing mindsets than policies and procedures. We want to get away from the mindset that the process for dealing with discipline and grievance is set in stone.



Discipline and grievance: frequently asked legal questions

Our legal experts from the IDS Employment Law Brief answer some frequently asked questions about the new Acas Code of Practice. (The IDS Employment Law Supplement, Disciplinary and Grievance Procedures, explains the law governing discipline and grievance procedures in the workplace in greater detail.)

What are the major differences between the old and the new systems?The new Code offers greater flexibility than the SDRPs [statutory dispute resolution procedures] because at each stage the parties have the option of departing from the Code if it is reasonable to do so in the circumstances. It also takes into account the size and resources of the employer. Employers will also particularly welcome the removal of S.98A of the Employment Rights Act 1996, which made a dismissal automatically unfair if there was a breach of the SDRPs no matter how minor.

On the downside, since the definition of what is ‘reasonable’ is somewhat subjective, there is no guarantee that an employment tribunal will agree that a departure from the Code was reasonable and in that sense there is less certainty over when a breach of the Code could lead to an adjustment in compensation. In terms of establishing fairness in dismissal cases, many of the requirements of the revised Code are drawn from the previous Code and there are therefore no real surprises. But the fact that there is now a financial penalty for failing to comply with the Code means that each individual point becomes a potential area for dispute – certainly when it comes to remedy – instead of part of the overall picture of reasonableness.

How significant will the changes be in practice?Those whose procedures complied with the SDRPs are unlikely to find it difficult to accommodate the new Code as it does not depart significantly from the old three-step procedure. Practitioners will probably find it less cumbersome since it need not be followed to the letter in all circumstances. However, all employers should check that their procedures contain the minimum steps set out in the new Code and amend them if necessary. As far as tribunal proceedings go, the decision to keep the financial penalty means that these are likely to involve protracted legal arguments over compliance with the new Code and it is hard to imagine that traffic through the tribunal system will be reduced.

What are the pitfalls?One potentially significant change is that there is now a requirement to follow the Code in respect of warnings as well as dismissals. Although there is no freestanding right to bring a tribunal claim for a failure to act fairly in issuing a warning, it will become relevant should the employee be dismissed at some later stage with that warning having been taken into account.

There is also some uncertainty over the scope of the Code. It is clear that it applies to dismissals based on the employee’s

misconduct or poor performance. However, other types of dismissal are not excluded from its scope, with the exception of dismissals by reason of redundancy and the non-renewal of a fixed-term contract. To avoid leaving themselves open to compensation uplifts, employers would be wise to make sure that all dismissal procedures follow the Acas Code.

Employers should also note that although the Code includes the recommendation that the employer allows an employee to be accompanied to a disciplinary or grievance hearing, the right to be accompanied is in fact a statutory right under S.10 of the Employment Relations Act 1999 (as amended by the Employment Relations Act 2004). Unlike the Acas Code, it applies to all workers and not just those defined as ‘employees’ (ie those who work under a contract of service). A failure to allow a worker to be accompanied entitles him or her to pursue a claim for compensation. This is therefore one ‘recommendation’ that cannot be ignored and excused on the ground of reasonableness.

If the employee fails to attend a meeting what can the employer do?The Acas Code allows an employer to make a decision on the available evidence if the employee is ‘unable or unwilling to attend a disciplinary meeting without good cause’. However, since this requires the employer to decide whether an employee has ‘good cause’ not to attend, employers should exercise caution before taking this path.

If an employee has failed to follow the Code does the employer still have to comply? The Code does not specify what happens if one party fails to comply with their side of the procedures. Under the old SDRPs, in this situation the other party was relieved of their obligation to follow the remaining steps of the procedure. Now, it must be assumed that the employer should still comply with the Code even if the employee has not, unless it is reasonable for them not to do so. This is likely to come down to the type and extent of the failure involved.

Do employers have to offer mediation?There is no legal obligation or incentive to use mediation in employment disputes. Although there is a nudge towards it in the foreword, reflecting the recommendations of the Gibbons review, this is non-binding and there is no requirement to mediate in the main body of the Code. Consequently, there will be no adjustment to any tribunal award if the parties have failed to attempt mediation.

Does the Code apply to ex-employees?It is unclear whether the Code applies to grievances raised by former employees once the employment relationship has ended. The fact that the adjustment of awards provisions apply to breach of contract claims, which can only be presented to an employment tribunal where it arises or is outstanding on the termination of employment, suggest that it does. Our advice would be, until this is clarified, to assume that it does.

Analysis


Disciplinary action against a trade union repThe Code states that the normal disciplinaryprocedure should be followed when action is beingconsidered against a trade union representative.However, it suggests that it is advisable to discussthe matter at an early stage with a union official –with the employee’s agreement.

Criminal offencesBeing charged or convicted of a criminal offenceis not usually in itself reason for disciplinaryaction. Acas says employers should considerwhat effect the charge or conviction has on theemployee’s suitability to do his or her job.

Handling grievancesThe Code’s principles for handling grievancesare, in summary:

Explain the nature of the grievance● If the grievance cannot be resolved

informally, employees should raise a formal grievance without unreasonable delay in writing

Hold a meeting with the employee ● Arrange a formal meeting without

unreasonable delay

● Allow the employee to explain his or her grievance and how it should be resolved

● Consider adjourning the meeting for any investigation that may be necessary

● Allow the employee to be accompanied at the meeting

Decide on appropriate action● Decisions should be communicated in writing

without unreasonable delay; inform the employee he or she can appeal if not content with the action taken

Allow the employee to take the grievance further● Employees should inform their employer of

their ground for appeal in writing and without unreasonable delay

● Appeals should be heard without unreasonable delay

● The appeal should be dealt with by a manager not previously involved in the case, wherever possible

● Workers have a statutory right to be accompanied

● Communicate the outcome of the appeal without unreasonable delay

Where disciplinary and grievance cases overlapThe Code states that ‘where an employee raisesa grievance during a disciplinary process, thedisciplinary process may be temporarilysuspended in order to deal with a grievance’. Ifthe cases are related they may be dealt withconcurrently.

Collective grievancesThe Code does not apply to grievances raised onbehalf of two or more employees by a tradeunion representative or other appropriateworkplace representative.

Workplace mediationThe use of an independent third-party mediatorto help resolve a workplace dispute has not beenbuilt into the Code itself. Instead, the possibleuse of this type of alternative dispute resolutionis highlighted in the foreword. Acas suggests thatwhere issues cannot be resolved in the workplace‘employers and employees should consider usingan independent third party’, which could be aninternal or external mediator.

Acas Guide Acas has produced a more detailed non-statutory guide to discipline and grievances atwork to accompany the Code of Practice. TheGuide contains a number of sample disciplinaryand grievance procedures. Tribunals are notobliged to take the Guide into account whenreaching a decision.

References

The Acas Code of Practice, Disciplinary and grievance procedures, and the Acas Guide: Discipline and grievances at work, can both be downloaded from www.acas.org.uk

Acas is an independent statutory body that aims to foster better employment relations. It provides information, advice and training, and works with employers to prevent or resolve problems.



Disciplinary proceduresFollowing the repeal of the statutory dispute resolution procedures and the introduction of therevised Acas Code of Practice, we examine the disciplinary policies of 29 UK organisations. Whilemost of the employers we spoke to have reviewed their policies in light of the new Code, few havefound it necessary to make significant – if any – changes.

Scope and purposeMany organisations begin their disciplinarypolicies by setting out their scope and purpose.This tends to involve explaining the keyprinciples behind an organisation’s approach totackling misconduct. Employers may alsoestablish who is covered, what types ofbehaviour are considered misconduct or grossmisconduct, and the responsibilities of the keystakeholders in the process.

Disciplinary policies typically aim to becorrective, not punitive. Organisations believethey should encourage good performance anddiscourage breaches of workplace rules. Boots,for example, establishes that the aim of itsdisciplinary procedure is ‘to help you to achieveand maintain our high standards of conduct. Ifyour conduct falls below acceptable standards,the procedure is designed to help managersmotivate and encourage you to put thingsright.’

For persistent or serious breaches, however,disciplinary policies allow for severe action to betaken – ultimately, an employee may be dismissed.

Establishing principlesIn their disciplinary procedures, organisationstypically state that they will:

● treat employees fairly and consistently

● ensure employees understand what rules are covered by a disciplinary procedure and the consequences of breaking them

● ensure that the managers responsible for operating disciplinary policies understand them and receive appropriate training

● match disciplinary action to the seriousness of the offence

● deal with any disciplinary issues as quickly as possible

● investigate any alleged misconduct fully before taking disciplinary action

● advise employees of the situation regarding allegations against them at every stage of the disciplinary procedure

● allow employees to state their case before any decision is made

● not dismiss employees for a first offence, unless it is proven to be gross misconduct.

Who is coveredSome employers make it clear at the beginning oftheir policy who is covered by the disciplinaryprocedures. In general they apply to allemployees at an organisation, although theymay not cover employees serving a probationaryperiod.

Some of the organisations that sent us theirpolicies to review have different policies in placefor different groups of staff. This is commonwhere two companies have merged or wheresome employees have terms and conditionsnegotiated by a recognised trade union andothers do not. However, organisations usuallyseek to harmonise their HR policies for differentgroups of staff as far as possible.

Disciplinary principles at Allianz

In its code of conduct and disciplinary procedure, Allianz establishes several principles that apply in the event of any misconduct:

● Disciplinary action will only be taken when appropriate investigation into all the circumstances has been completed.

● You will be made aware of the complaint and you will have the opportunity to present your case before any disciplinary action is taken.

● If an allegation is made against you, you will be told as soon as practicable and reasonable notice will be given of a disciplinary interview.

● You have the right to be accompanied by a work colleague or a trade union representative during any disciplinary or appeal hearing.

● You will only be dismissed for the first breach of discipline if it is a case of gross misconduct when the penalty may be dismissal without notice.

● You will have the right to appeal against any disciplinary penalty imposed.

● We may use the disciplinary procedure in relation to misconduct committed before or during a period of sick absence, while you are off sick.

● Salary increases and other improvements to employment terms may not be applied after a disciplinary warning has been issued.

Analysis


Status of policyDisciplinary policies may be part of employees’contracts – subject to their agreement – or free-standing, with no contractual basis. A number ofthe procedures we reviewed included thestatement that ‘this policy is non-contractual’.The main advantage of this approach is that itgives the employer flexibility to depart from thepolicy if it so chooses – although if this results innon-compliance with the Acas Code of Practiceon disciplinary and grievance procedures it must

be deemed reasonable to avoid falling foul of anemployment tribunal.

Heavily unionised organisations may agree theirdisciplinary policy with the relevant trade unionand incorporate it into a collective agreement.This is not legally enforceable by either party –but it can give rise to contractual obligations.

What is coveredOrganisations may consider taking disciplinaryaction when there are concerns, or allegations

Examples of minor faults, misconduct and gross misconduct

Disciplinary procedures typically include examples of the offences considered to constitute minor faults, misconduct or gross misconduct. Below we provide some of the most common examples given in the 29 policies we reviewed.

Minor faults Minor faults are typically dealt with informally. They may include:

● poor time-keeping● poor attendance

● unsatisfactory performance● bad language● surly and rude behaviour.

Misconduct Any offence considered to constitute misconduct is likely to invoke disciplinary procedures. Examples include:

● unauthorised absence from work

● frequent or persistent lateness and absenteeism● unacceptable performance● persistent time-wasting

● persistent failure to meet work targets and deadlines● incompetence in performance of duties● minor breaches of confidence

● contravening minor safety practices, such as failing to wear protective clothing

● raising grievances without good reason● refusal to obey a reasonable instruction

● unauthorised use of the telephone● excessive personal use of the Internet or e-mail● inappropriate dress

● objectionable or insulting behaviour● smoking on company premises● minor or unwitting acts of discrimination, harassment or

victimisation

● careless destruction or use of the organisation’s property.

Gross misconduct Instances of gross misconduct lead to immediate disciplinary action and typically include:

● serious breaches of the terms and conditions of employment

● criminal offences, whether committed on official duty or otherwise, that directly affect an employee’s ability to carry out their job, or that have serious implications concerning the propriety of them continuing in their job

● serious insubordination, refusal to co-operate or neglect of duty

● serious breach of trust and confidence; unauthorised disclosure of confidential information

● persistent bad time-keeping, despite formal recorded warnings; prolonged or repeated unauthorised absence; falling asleep on the job

● financial irregularities on official duty; engaging in unauthorised employment during contracted hours; running a money-lending business; unauthorised private trading; betting or gaming on work premises; bankruptcy and insolvency

● oppressive, violent, bullying or disrespectful behaviour; deliberate damage to property; fighting or physical assault

● indecent and immoral behaviour; sexual misconduct

● discrimination, abuse or harassment on the grounds of race, sex, sexual orientation, age, disability, religion, belief, colour or ethnic origin

● use of drugs and alcohol at work; being unfit for work due to alcohol or prescription drugs

● serious misuse of company computers, systems and equipment; deliberate damage of company products; reckless or serious misuse of an organisation’s vehicle; malicious damage or sabotage

● serious infringement of health and safety rules, endangering the life of another person

● conduct that adversely affects the reputation of the organisation and the effective discharge of its business; misuse of the organisation’s name; rudeness to customers or suppliers

● fraud; falsification of qualifications or records; clocking in or out for another employee; false claims for business expenses; accepting a gift that may compromise or conflict an employee’s obligations to the organisation

● serious breach of the Data Protection Act; unauthorised access to computer records.



Issue arises

Misconduct Gross misconduct

* Informal discussions/mediation Dealing with problems in this way can often lead to speedy resolution of issues. If the issue cannot be resolved informally or by mediation where possible, the formal procedure will need to be followed.

Investigation if appropriate

Resolution

Investigation if appropriate Formal meeting Give reasonable notice

No disciplinary action Decision

* First written warning

* Final written warning

* Dismissal

Confirm decision in writing preferably within 5 working days of formal meeting

ResolutionEmployee can appeal within 5 working days

of receipt of written decision

Appeal meeting Give reasonable notice

Decision confirmed in writing preferably within 5 working days

Action deemed correct

Appeal upheld

Oxfam GB's misconduct/gross misconduct formal procedure flow-chart

*Action taken will depend on the severity of the misconduct and may lead to one or more of the possible stages being omitted.

Analysis


have been made, about an employee’s conduct.These range from minor issues, such aspersistent time-wasting, to more seriousoffences, such as violence. Organisations mayhave separate policies in place to deal withcapability issues, poor attendance,whistleblowing, discrimination, harassment andbullying.

Defining misconductMost of the procedures we examined giveexamples of the types of offences for whichdisciplinary action can be invoked. Theytypically split offences into two categories:misconduct that is likely to lead to formaldisciplinary action being started; and moreserious gross misconduct for which immediateaction will be taken.

Some employers also provide examples of minorfaults, which tend to be dealt with informally.Organisations generally include a statementmaking it clear that the examples of misconductand gross misconduct they provide are notexhaustive. The box on page 9 lists some of theexample offences that are commonly listed indisciplinary procedures.

Capability issuesPoor performance is a grey area. It is oftendifficult to tell if underperformance is due to alack of ability or a lack of effort. In the firstinstance, most organisations seek to addresssuch issues through their standard performancemanagement arrangements. This usuallyinvolves agreeing performance targets andreviewing progress on a more regular basis.Employees may be offered some form ofcoaching, training or counselling to give them anopportunity to improve.

If poor performance continues, organisationsmay turn to their formal capability procedures.In general, these are used where sub-standardperformance is due to a lack of appropriate skillsor a medical complaint.

If an employee possesses the ability to do the jobbut chooses not to, the issue becomes one ofmisconduct. It is then dealt with under thedisciplinary procedure.

Barclays recognises that conduct and capabilityissues can occasionally overlap. It suggests that ifmanagers have any doubts they should contactHR. The bank also provides the followingguidance to help line managers determine

whether they should instigate the formalcapability procedure:

● Is the individual entirely at fault or has their performance/attendance been affected by other factors?

● Is the decision to use the capability procedure process based on fact and would it be considered ‘reasonable’?

● Sometimes, despite how hard the employee tries or how much training and support is provided, they are unable to perform the role to the required standard. In these cases, action is still appropriate.

● Prior to any formal action being taken for capability, a Performance Improvement Plan must have been in place and the individual given reasonable time to improve.

Dealing with poor attendanceSpecific absence policies are generally used todeal with absence issues. But disciplinaryprocedures may be applied when absence isdiscovered to be wanton.

Criminal offencesEmployees charged with a criminal offence donot necessarily face disciplinary action, providedthe offence is not work-related. Moreover,conviction for a criminal offence should notresult automatically in an employee’s dismissal,although imprisonment will usually lead todismissal because the employee will be unable tofulfil his or her contract.

Acas has produced a non-statutory guide todiscipline and grievances at work to accompanyits Code of Practice. According to the Guide:‘The question to be asked in such cases iswhether the employee’s conduct or convictionmerits action because of its employmentimplications.’ Acas suggests that the followingguidance should be borne in mind if an employerthinks such conduct warrants disciplinaryaction:

● The employer should investigate the facts as far as possible, come to a view about them and consider whether the conduct is sufficiently serious to warrant instituting the disciplinary procedure.

● Where the conduct requires prompt attention, the employer need not await the outcome of the prosecution before taking fair and reasonable action.



● Where the police are called in, they should not be asked to conduct any investigation on behalf of the employer, nor should they be present at any meeting or disciplinary meeting.

Responsibility for disciplineSome organisation’s policies establish theresponsibilities of employees, line managers andHR in the disciplinary process (see the boxabove). Line managers often have the largest role– they are usually expected to deal withmisconduct as soon as it arises, carry outinvestigations where necessary and chairdisciplinary hearings.

Training line managersIt is all very well having a comprehensive policyin place to deal with discipline, but it will only beeffective if line managers understand and followit. Giving line managers training in conflictmanagement can help ensure they are wellplaced to tackle disciplinary issues at an earlystage before they escalate into a more seriousproblem. At Barclays, managers must havecompleted and passed the accredited Discipline,Capability and Grievance training before theycan manage the disciplinary, capability andgrievance procedures.

An informal approachMost organisations encourage line managers topursue informal approaches when dealing withdisciplinary issues before invoking formalprocedures, and include a statement to this effectin their policies. According to Acas, in theforeword to its Code of Practice: ‘Manypotential disciplinary or grievance issues can beresolved informally. A quiet word is often allthat is required to resolve an issue.’

Tackling minor issues informally can prove moreconstructive in the long run, avoiding the upseta formal investigation can cause across a team ordepartment. But the success of such an approachis reliant on organisations having effectivepeople management processes in place and linemanagers who apply them appropriately.

Provide constructive criticismThe Acas Guide suggests that line managersshould seek an informal resolution by speakingto the employee in question in private. It says‘criticism should be constructive, with theemphasis being on finding ways for theemployee to improve and for the improvementto be sustained’. Acas also suggests employersshould listen to what the employee has to sayabout the issue.

Be clear about the issue If an employee is going to improve, it isimportant he or she is clear about what the issueis and what needs to be done. In its disciplinarypolicy, Choice Support Group notes that: ‘To beeffective, informal counselling should make itclear to the employee what conduct isunacceptable or where their performance isbelow the standard required.’

Establishing responsibilities

Some organisations list specific responsibilities for employees, line managers and HR staff, all of whom have an important role to play in the disciplinary process.

Employees’ responsibilitiesEmployees’ responsibilities are generally to:

● give a satisfactory level of performance

● read and understand the organisation’s rules and standards● understand the disciplinary action that can be taken if the rules are

not followed● consult management when issues are unclear.

The role of line managersLine managers are likely to have a key part to play in resolving any potential disciplinary issues. Typically their role as defined within a company’s disciplinary policy is to:

● set and apply consistent standards of good conduct

● not discriminate against employees● communicate rules and required standards to all employees● attend training on disciplinary procedures

● deal with minor offences and instances of misconduct informally, using counselling and training where necessary

● carry out investigations or disciplinary hearings promptly, fairly, thoroughly and consistently

● maintain confidentiality and ensure false rumours are not allowed to circulate

● explain to employees the nature of any sanction imposed.

Support from HRThe role of HR is usually to administer the disciplinary process and to support and advise employees and line managers. HR staff are expected to:

● advise senior and line managers about disciplinary procedures● advise employees who are under investigation or undergoing the

disciplinary process● sit in on disciplinary hearings and appeals when required

● maintain records of all cases● monitor the conduct of cases to ensure consistency

● ensure consistency in the application of penalties.

Analysis


Prevent the meeting becoming formalLine managers need to take care that their effortsto seek an informal resolution do notinadvertently turn into formal action. Accordingto the Acas Guide: ‘This may unintentionallydeny employees certain rights, such as the rightto be accompanied.’ Acas advises that if itbecomes obvious that the matter may be moreserious the meeting should be adjourned and theemployee should be informed that the formalprocedure will now be followed.

Consider mediationA few employers signpost in their policies that itmay be appropriate to consider mediation beforethe formal procedure kicks into action.Mediation involves an independent third-partyhelping two or more people in a dispute reach anagreement. We look at mediation in greaterdetail on page 26.

The formal processWhere an informal approach has failed, or anemployee’s misconduct is more serious, employersmay invoke their formal disciplinary procedure.The first step is to carry out an investigation intothe alleged misconduct, during which theemployee may be suspended on full pay.Employees should then be invited to a disciplinaryhearing, where a decision is made as to whetherany sanction should be imposed. Employees areusually given just one chance to appeal.

Conducting an investigationBefore any disciplinary action is taken,employers should first carry out a detailedinvestigation to establish the facts. Employeesshould be informed promptly that a complaintmade against them is being investigated. TheAcas Code states that: ‘It is important to carryout necessary investigations of potentialdisciplinary matters without unreasonabledelay.’ Few of the policies we examinedprescribed fixed time limits for conductinginvestigations, although one stated that theyshould be completed within 30 days. However, inpractice investigations can drag on as employeesmay be unavailable on long-term sick leave.

Line managers investigateThe direct line manager of an employee facingpossible disciplinary action often carries out theinvestigation. However, in some situations anindependent investigating officer is appointed –particularly if there is a conflict of interest.

Establishing the factsThe purpose of an investigation into anallegation of misconduct is to establish all thefacts, not to build a case against the employee.The manager carrying out the investigationshould be looking for evidence that bothsupports and refutes the allegations.

In gathering all the relevant facts, line managersmay look for evidence from:

● the people directly involved and any witnesses

● documents, including letters and e-mails; receipts, if it is an issue involving finances

Oxfam’s guidelines on addressing underperformance

The following extract from Oxfam’s Dealing with Problems at Work Policy shows the guidelines it gives to its line managers on how to deal with performance issues informally. The same process may be applied to address minor misconduct, such as continued lateness.

If you have a member of your team who is under-performing, we recommend the following steps for you to try and resolve the issue informally.

● Firstly, you should meet with the employee to let them know that their performance is not reaching the required standard. Use the opportunity to:

● explore reasons why this might be. Is there something happening in their personal life? Are they finding some of the work difficult due to a lack of training or support?

● you might wish to discuss the way that you work together and make adjustments to aid their confidence and improvement.

● revisit their objectives. Are they realistic? How involved was the employee in setting their objectives and are they motivated to achieve them?

● Set up regular one-to-one meetings with the employee to review each aspect of their performance giving positive feedback where it is due and constructive feedback where required. Make notes after the meetings and communicate what has been agreed with the employee.

● Seek advice from your own manager about the situation and explain what steps you have taken to try and resolve the issue.

● Contact your HR representative. If they are involved from the beginning, they will be able to provide you with better support and there may be an opportunity to try mediation should the situation become more serious

● If, after several meetings, the improvement is not sufficient or fails to be maintained, you will need to work together with the employee to design an action plan to be reviewed on a regular basis. You will need to make it clear to the employee that if their performance does not improve despite the measures put in place, the formal procedure may need to be followed.

● If the employee’s performance does not improve after all these efforts, you will need to refer to the Performance/Capability/Misconduct Formal Procedure.



● physical evidence, such as damaged property

● medical evidence in cases of violence.

One employer’s policy we examined said that theinvestigation may involve a search of theemployee’s locker.

Investigatory meetingsTo gather all the facts of a case, line managersmay hold an investigatory meeting – althoughthis may not be considered necessary. The AcasGuide suggests that employees should be givenadvance warning and time to prepare if ameeting is held.

Barclays sets out the following guidelines onhow to conduct an investigatory meeting:

● Explain to the individual that this is an investigatory meeting into their conduct

● Emphasise that this is not a disciplinary hearing

● Put the facts to the employee, go through any documentary evidence and invite them to comment

● If the explanation is incomplete, inconsistent or evasive, probe further – but remember it is not an interrogation

● Inform the employee at the end of the meeting that further consideration will take place and they will be informed of the outcome as soon as possible

● Remind all present that the issues discussed are confidential.

Employees do not have a statutory right to beaccompanied at an investigatory meeting andsome companies spell this out in their policies.However, many employers allow employees tobe accompanied at all stages of the disciplinaryprocess. The Acas Code states that: ‘If there is aninvestigatory meeting this should not in itselfresult in any disciplinary action.’ Its Guide notesthat: ‘If it becomes apparent that formal actionmay be needed then this should be dealt with ata formal meeting at which the employee willhave the statutory right to be accompanied.’

Precautionary suspensionDisciplinary procedures generally allow for thesuspension of employees on full pay whileinvestigations are carried out. In line with theAcas Code, all the policies we examined made itclear that suspension on pay is always aprecautionary measure and not regarded as adisciplinary action. The Acas Guide suggests

that suspension may be necessary ‘whererelationships have broken down, in grossmisconduct cases or where there are risks to anemployee’s or the company’s property, orresponsibilities to other parties’.

Suspending with payEmployees’ pay while on suspension is likely toinclude any regular payments, such as a shiftpremium. However, it may exclude occasionalpayments, such as overtime.

A temporary measureSuspension during an investigation should be foras short a period as possible and should be keptunder review. Company practice variesconsiderably. One organisation’s disciplinarypolicy stated that suspension is normally for amaximum of two days. At another, employeessuspected of gross misconduct are suspended forno more than five days while investigations arecarried out. One company allowed employees toappeal if suspension was for longer than threeweeks and they were not notified of a proposalto dismiss.

Remaining available during suspensionChoice Support Group notes in its disciplinarypolicy that: ‘It is a condition of suspension thatthe employee is available during normal hours toattend any meetings deemed necessary and doesnot unreasonably delay any disciplinaryproceedings without adequate and acceptablereasons (eg through failure to attend adisciplinary meeting).’

Gardening leaveAt Choice Support Group employees may beplaced on additional paid leave – ‘gardeningleave’ – if a serious disciplinary allegation ismade. In this instance, employees are removedfrom their place of work immediately. Leave ofabsence is typically limited to around 48 hours,pending the outcome of an initial investigationto determine whether the allegations havesufficient substance to justify suspension.

Inviting employees to a hearingIf, once the investigation has been completed,disciplinary action is considered necessary, theemployer should inform the employee in writingof the charge(s) against him or her and thepossible consequences of the disciplinary action.This should contain enough information toenable him or her to prepare an answer to thecase. The Acas Code states that: ‘It wouldnormally be appropriate to provide copies of any

Analysis


written evidence, which may include witnessstatements.’ The notification should also givedetails of the time and venue of the disciplinaryhearing and advise the employee of his or herright to be accompanied by a colleague or tradeunion representative.

Dewhurst notes that the letter sent to employeesnotifying them of a disciplinary hearing shouldcover the following points:

● the reason for the disciplinary hearing

● the outcome of the investigation

● the possible consequences of the hearing

● the date, time and venue of the disciplinary hearing

● their right to be accompanied at the disciplinary hearing by a companion (a work colleague or trade union representative).

Giving notice of a disciplinary hearingThe Acas Code states that: ‘The meeting shouldbe held without unreasonable delay whilstallowing the employee reasonable time toprepare their case.’ In practice, what employersinterpret as ‘reasonable’ varies. The noticeemployers give to employees to prepare for adisciplinary hearing ranges from a minimum oftwo days to a maximum of ten days. Mostorganisations, however, do not specify a setnotice period and many mirror the Acas Code inpromising reasonable notice.

Rescheduling meetingsThe Acas Code establishes that ‘employers andemployees (and their companions) should makeevery effort to attend the meeting’. However,employers generally allow for meetings to berescheduled if the employee concerned providesa good reason, or if the employee’s companioncannot attend the scheduled meeting. Employerswho cover this point in their procedurestypically allow the hearing to be postponed fornot more than five working days (as suggestedby the Acas Guide).

Failure to attendIf an employee is repeatedly unable or unwillingto attend a meeting, employers may make adecision in his or her absence. According to theAcas Guide there are a number of considerationsemployers need to take into account beforecoming to this conclusion. These include: theseriousness of the disciplinary issue; theemployee’s disciplinary record; medical opinion

on the employee’s fitness to attend; and howsimilar cases have been handled in the past.

Conducting the meeting

Choosing a suitable venueSome employers provide guidance on choosing asuitable venue for the disciplinary meeting. TheAcas Guide suggests a room where there will beno interruptions. It is particularly important totake into account any physical disability of theemployee or his or her companion. Barclaysnotes that: ‘When making arrangements forformal disciplinary, capability or grievancemeetings it is important to identify whether theemployee has any specific requirements thatwould require a reasonable adjustment to bemade to enable them to participate fully inproceedings.’ Employers may also need toconsider providing an interpreter.

The right to be accompaniedEmployees have a right to be accompanied by acolleague or trade union official at disciplinaryhearings. Companions have a role in meetingsthat extends beyond simply offering support.They can address disciplinary meetings, put theemployee’s case and respond on the employee’sbehalf to any views expressed during the

Inviting employees to a disciplinary hearing at Affinity Sutton

At Affinity Sutton, employees invited to attend a disciplinary meeting are informed of the following in writing:

● The date, time and location of the meeting

● The name of the manager hearing the case

● The names of anyone else attending the hearing, eg note taker

● The specific nature of the allegations

● The level of possible action, particularly in serious cases that may result in dismissal and in some cases loss of tenancy

● The right to be accompanied by a colleague, Staff Forum or Trade Union representative

● If appropriate, the timescale in which the employee is required to submit any documentary evidence in support of their own case and the name of the person accompanying them to the hearing.

Copies of any documentary evidence to be used are also provided and a copy of the disciplinary procedure enclosed.



meeting. But they cannot answer questions onthe worker’s behalf, address the hearing if theworker does not wish it or prevent the employerfrom explaining its case.

Organisations tend to allow paid time off tocompanions, both to familiarise themselves withthe case and to attend meetings.

The disciplinary panelThe disciplinary hearing is typically conductedby an appropriate line manager. In instanceswhere a manager is charged with misconduct,the hearing is usually chaired by a more seniormanager. The Acas Code notes that: ‘Inmisconduct cases, where practicable, differentpeople should carry out the investigation anddisciplinary hearings.’

The panel may also include a representativefrom the HR department to advise on correctprocedure. Another employee may sit in onhearings to take notes.

Calling witnessesWitnesses can be called to disciplinary hearingsby either the employee or management, providedtheir testimony is judged to be pertinent to theissue under consideration. In its disciplinarypolicy, Oxfam GB states that: ‘Witnesses shouldnot be called to attest to the character of anotheremployee but to help establish facts notpreviously established.’ Oxfam also notes that ‘ifthe cost of bringing witnesses to the meeting isexcessive due to the distance involved, telephoneconferencing facilities could be considered’.

Order of businessThe following is typical of the suggestedstructure of a disciplinary hearing:

● the manager presenting the complaint summarises the case against the employee

● the manager questions the witnesses he or she has called to support the case

● the employee or his/her representative may question the manager’s witnesses, but he or she is not allowed to make statements or assertions

● the manager may re-examine his or her witnesses if new questions have been raised

● the manager summarises the case against the employee and makes a recommendation

● the employee/representative responds to the charges and calls his or her witnesses to present evidence

● the manager may question the employee’s witnesses and the employee may re-examine these witnesses if new questions have been raised during the proceedings

● the employee/representative makes a closing summary for the defence

● the manager may respond to any new issues raised by the employee’s side

● the panel retires to make a decision.

The panel may seek clarification of particularissues at any point during this process. Themanager or employee/representative may seekan adjournment of the hearing if either side feelsfurther investigation of the issues is necessary.

Communicating the decisionThe Acas Guide suggests that employers shouldadjourn the meeting before making a decisionon disciplinary action to allow time forreflection. Some disciplinary policies state thatthe employee should be informed of thedecision verbally straight after the meeting or atleast on the same day. Confirmation in writingusually follows no more than five days later. Ifthe decision goes against the employee, theemployer has to notify him or her of the rightto appeal.

Disciplinary sanctionsA number of factors are taken into account inarriving at what is considered the mostappropriate sanction against an employee whohas been found guilty of misconduct. Theseinclude: the type and seriousness of the offence;precedent; the employee’s record and position inthe company; length of service; and any ‘specialmitigating circumstances’. When reaching adecision on what disciplinary action should betaken, Choice Support states that: ‘The chairshould take account of the employee’sdisciplinary and general record, length ofservice, actions taken in similar cases and theexplanations given by the employee.’

Verbal warningsFirst and minor offences tend to be dealt with byline managers and result in an informal warning.Although such warnings are put on an employee’spersonal record, they are not necessarily part ofthe formal disciplinary process.

However, while the warnings are consideredinformal, this does not mean that no action istaken. Employees may, for example, be offeredcoaching or training to improve their

Analysis


performance. And employees are made aware thatany further misconduct will almost certainly leadto formal disciplinary procedures being invoked.

Issuing written warningsIf an employee’s conduct fails to improve – or ifan offence is serious enough in its own right tojustify tougher action – organisations typicallyissue a formal warning in writing. This may befollowed by a final written warning if there is noimprovement – although employers reserve the

right to instigate action at whatever level theythink appropriate.

Written warnings should set out the nature ofthe misconduct and the change in behaviourrequired. They also tend to state that any furthermisconduct will automatically lead to moreserious disciplinary measures being taken.

Allianz states that verbal and written warningsshould establish:

● the reason for the warning

Case law: disciplinary procedures and unfair dismissal

Disciplinary hearing in an employee’s absenceAn employer was wrong to proceed with a disciplinary hearing in the employee’s absence when she was signed off sick.

N had been suspended over a number of allegations including bullying and harassment and her disciplinary hearing was postponed more than once on the basis of her doctor’s evidence that she was not fit to attend. However, her employer went ahead with a hearing in her absence when it learned that N had been in negotiations with a new employer, and dismissed her. The dismissal was unfair because the employer should not have held a hearing in her absence unless there was ‘compelling evidence’ that she was ‘pulling the wool over her own doctor’s eyes’ or there was authoritative medical evidence to the contrary.

William Hicks and Partners (A Firm) v Nadal EAT 0164/05.

Investigating misconductWhen an employee is charged with misconduct the employer must carry out such investigation as is reasonable in the circumstances.

B was charged with dishonesty in relation to staff purchases, which included charging an expensive pair of sunglasses at the cost of a cheaper pair. In a judgment that has become the standard test of fairness in conduct dismissals, the Employment Appeal Tribunal held that for a conduct dismissal to be fair, the employer must have a genuine belief in the employee's misconduct, which must be based on reasonable grounds, and the employer must have carried out such investigation into the matter as was reasonable in the circumstances.

British Home Stores Ltd v Burchell 1980 ICR 303

Rectifying an unfair procedure at appeal Procedural defects during a dismissal can be put right on appeal as long as the appeal is procedurally fair and thorough and the decision maker is open-minded.

If the employer has not followed fair procedures when dismissing an employee this can be put right

on appeal, turning an unfair dismissal into a fair one. It does not matter whether the appeal is a full re-hearing or a review; what matters is whether the disciplinary process as a whole was fair. In this case, the employer’s failure to provide a deaf employee with an interpreter at his dismissal hearing was rectified by an appeal hearing where one was provided and he was accompanied by his sister, a qualified teacher of deaf people.

Taylor v OCS Group Ltd 2006 ICR 1602

Ill-health dismissalsEmployers should not set themselves up as medical experts; in cases of long term sickness absence it is essential to consult the employee about his or her medical condition.

D was dismissed on the ground of ill health on the basis of a report prepared by a company doctor who had not personally examined him. His dismissal was unfair because D had not had the opportunity to state his case and his employer had not obtained a full medical report before deciding to dismiss him.

East Lindsey District Council v Daubney 1977 ICR 566

The right to be accompanied Even if an employer considers a warning to be ‘informal’, if it is taken into account in subsequent disciplinary action a tribunal will view it as formal action attracting a right to be accompanied.

F-B and H were called to disciplinary hearings, one for driving through a red light and the other for poor attendance. LU described the hearings as ‘informal’ and denied both workers the right to be accompanied by their trade union representatives. Both were given ‘informal oral warnings’ that were confirmed in writing. Since the warnings formed part of their disciplinary record, they were found to be formal warnings and the employees had been denied their right to be accompanied.

London Underground Ltd v Ferenc-Batchelor; Harding v London Underground Ltd 2003 ICR 656.



● the improvement required, if appropriate

● the timescale for the improvement

● an outline of the likely action to be taken should there be a further breach of discipline or no improvement is made

● the right of appeal.

Setting time limits for warningsMost employers stipulate a period of time duringwhich disciplinary warnings remain valid. Ingeneral, the more severe the warning, the longerit remains live.

At most of the organisations we contacted thatset limits, first written warnings expire after sixmonths, while final written warnings last 12months. There is some variance, however, andfirst warnings may last up to 12 months andfinal warnings as long as 24 months. A few

employers operate three levels of writtenwarning, with the second warning lasting 12months. Two of the policies we examinedstipulated a valid period for verbal warnings –four months at one and six at the other.

Some warnings are never considered to havefully expired and may be taken intoconsideration at a later stage of the disciplinaryprocess if they are judged relevant to the case.

DismissalReceiving a final written warning puts theemployee in the ‘last chance saloon’. Ifperformance and conduct fail to improve,organisations reserve the right to dismiss theemployee, but usually with notice. In cases of grossmisconduct, organisations have the power todismiss an employee immediately, without notice.

Alternatives to dismissalEmployers may decide that a sanction other thandismissal is more appropriate. At Hitachi, thefollowing sanctions may be imposed if consideredappropriate as an alternative to dismissal:

● unpaid suspension

● demotion/disciplinary transfer

● loss of bonus

● loss of benefits.

Taking action against union representativesTaking disciplinary action against a trade unionrepresentative requires diplomacy. The AcasCode says that the normal procedure should befollowed but advises discussing the matter at anearly stage with an official of the union, with theemployee’s agreement.

Derbyshire Constabulary notes that disciplinaryaction against a trade union official can lead toa serious dispute if it is seen as an attack on theunion’s function. Its policy states that: ‘Althoughnormal disciplinary standards should apply totheir conduct as employees, no disciplinaryaction beyond a verbal warning should be takenuntil the circumstances of the case have beendiscussed with a senior trade unionrepresentative or full-time official.’

Suspending disciplinary actionIt is not unknown for employees who are subjectto a disciplinary process to raise a grievanceagainst a fellow employee or manager. In thiscase, a decision has to be made on whether tosuspend the disciplinary process itself while thegrievance is dealt with.

Disciplinary penalties at the Forestry Commission

The following is an extract from the Forestry Commission’s disciplinary procedures, setting out the possible penalties that can be imposed for misconduct:

Penalties may be combined if the case warrants it.

8.1 Penalties for minor misconduct● Noted Verbal Warning (normally six months’ shelf life).

● Written Warning (normally up to 12 months’ shelf life).

8.2 Penalties for serious or gross misconduct, or repeated minor misconduct● Written Warning (normally up to 12 months’ shelf life).● Final Written Warning (normally 24 months’ shelf life).

● Dismissal:● in cases of gross misconduct, this can be without notice; or● in cases of dismissal following an earlier final written warning

and subsequent misconduct not amounting to gross misconduct, termination will be with notice, as in the contract of employment.

● Withholding a pay progression step or forfeit of progression already earned.

● Fine or an order to make reimbursement to the FC.● Suspension.

● Disciplinary transfer.● Demotion to a lower Pay Band, which may involve a reduction in

pay or benefits.● Ban on promotion for a specific period.

8.3 Recovery of losses to public fundsOn dismissal for an offence involving any loss of public funds, any sums unpaid by the FC, for example salary or payments ‘in lieu’ due to the last day of employment, may be withheld by the FC, to recover all or some of the losses incurred as a result of the misconduct. In cases involving serious losses or criminal cases such as fraud, your pension entitlements may also be reviewed.

Analysis


AppealsThe vast majority of the disciplinary procedureswe reviewed give employees just oneopportunity to appeal. The decision of theappeals panel is final.

Grounds of appealThe Acas Code states that employees shouldappeal in writing if they feel disciplinary actiontaken against them is wrong or unjust. Someemployers seek to clarify the grounds on whichan employee can appeal – for example, becausenew evidence has come to light or the employeethinks the process followed was not fair.

Time limits on appealsMost organisations set a time limit for appeals tobe made after a disciplinary panel has issued itsdecision – the most popular being five days,although seven- and ten-day limits are alsocommon. Generally, an appeal does not delaythe implementation of the decision of thedisciplinary hearing. Of course, if an appeal issuccessful, a penalty may be reduced in itsseverity or even reversed.

To end any uncertainty over a disciplinary issue,organisations are usually keen to carry outappeals promptly. Most disciplinary policiesstate that ‘appeals will be dealt with as quicklyas possible’, but some of those we reviewed givea specific period within which the hearing musttake place. In this case, the time limit is usuallyframed in terms of the number of days followingthe lodging of the appeal. This ranges from twoworking days to four working weeks, but ismore typically one week. Those who set a timelimit often leave themselves scope to hold an

appeal later, promising to inform the employee ifthis is necessary and why.

Hearing an employee’s appealAcas recommends that, wherever possible, theappeal hearing is dealt with by a manager notinvolved with the earlier disciplinary hearing.Appeals are usually heard by a more seniormanager. However, there are no hard and fastrules. If the most senior manager at anorganisation attended the first hearing, thatmanager might also hear the appeal.Alternatively, a more junior manager could taketheir place. Appeals panels may be larger andcomprise more senior managers when dealingwith more serious disciplinary issues or where asenior member of staff is involved.

As at disciplinary meetings, employees have aright to be accompanied at appeal hearings.

Options after appealAfter hearing the appeal, the manager – who isoften accompanied by a representative from theHR department – is faced with three choices:

● to uphold the original decision

● to reduce the penalty

● to clear the employee and remove the allegation from his or her personal record.

The Acas Guide states that an appeal ‘should notresult in any increase in penalty as this may deterindividuals from appealing’.

Once a decision is made, a letter setting out andexplaining the reasoning behind it must be givento the employee who lodged the appeal.



Grievance proceduresEmployers have made few changes to their grievance procedures following the repeal of thestatutory dispute resolution procedures. Most continue to follow Acas guidance closely. Grievanceprocedures tend to be more concise than disciplinary policies, and establish a process based on threebasic steps: submitting a written grievance; holding a meeting before reaching a decision; andallowing employees to raise an appeal. Our research is based on an analysis of the grievanceprocedures from 29 employers.

What is a grievance?The revised Acas Code of Practice fordisciplinary and grievance procedures provides abroad definition of what constitutes a grievance.It states that:

‘Grievances are concerns, problems orcomplaints that employees raise with theiremployees.’

Issues that may cause a grievance The non-statutory Acas Guide to discipline andgrievances at work identifies a number of issuesthat may cause grievances, including:

● terms and conditions of employment

● health and safety

● work relations

● bullying and harassment

● new working practices

● working environment

● organisational change

● discrimination.

In its grievance policy, Choice Support Groupidentifies some of the issues that may causegrievances as: terms and conditions ofemployment; health and safety; work relations;new working practices; working environment;organisational change; and equalopportunities. Barclays, meanwhile, states that:‘A grievance situation can arise where anemployee has a complaint or problem aboutany issue relating to their work, workingenvironment, pay and benefits, working hoursor is concerned about any other issue affectingtheir employment.’

Separate policies Many organisations consider bullying andharassment to be a particularly sensitive issueand, therefore, handle these grievances under aseparate policy. Employers also often haveseparate guidelines for cases of whistleblowing.

Aggrieved about a disciplinaryAn employee may seek to raise a grievance aboutan employer taking disciplinary action. In thisinstance, most organisations require thecomplaint to be dealt with as an appeal underthe disciplinary procedure – rather than as aseparate grievance (although there may belimited circumstances where the grievanceprocedure is applied).

At Choice Support Group, for example,grievances related to disciplinary action arenormally dealt with through the appealsprocedure. However, the organisation’sgrievance policy sets out the following twoinstances where a grievance concerning adisciplinary may be permissible:

● where the grievance is that the disciplinary action constitutes an act of unlawful discrimination by management

● where the grievance is that management has ulterior motives for the disciplinary action not related to those claimed.

An informal resolutionEmployers typically encourage staff to attemptto resolve issues informally with their linemanager before lodging a formal grievance. Oneemployer notes in its grievance procedures thatits ‘policy is to encourage free communicationbetween employees and their managers’.Although most employers do not apply a timelimit for the informal stage, one notes that if anissue remains unresolved after two days a formalgrievance should be made in writing.

Achieving an informal resolution avoids thetime, effort and possible upset involved in aformal process. Creating a culture of open andhonest feedback should allow the majority ofissues to be dealt with as part of the normal day-to-day conversations between employees andtheir line managers.

Where informal attempts at a resolution fail,organisations may encourage employees to

Analysis


consider mediation before going down theformal route (see the box above).

The formal procedureMost of the 29 grievance procedures weexamined follow the same basic three steps:

● the employee submits a written grievance

● the employer invites the parties involved to a meeting before reaching a decision

● the employee can appeal against the decision, in which case a further meeting is held.

Raising a grievanceFormal grievances should be raised in writingand, according to the Acas Code, without‘unreasonable delay’. They are typicallysubmitted to an employee’s immediate linemanager. Of course, there are exceptions. Forinstance, if the grievance mentions the linemanager it may be escalated to a more seniormanager. In addition, if the nature of thegrievance is considered too personal it may bemore appropriate to refer the grievance to HR.

What to include in the grievance letterEmployees are typically expected to set out inreasonable detail the circumstances about whichthey are aggrieved. But setting out a grievance inwriting is not easy. In its grievance procedures,

Allianz states that: ‘If the employee’s firstlanguage is not English, or they have difficulty inexpressing themselves on paper, they should beencouraged to seek help from a work colleagueor union representative.’

Some organisations set out exactly what shouldbe included in the written grievance and/orprovide a template letter. Employees aretypically asked to give:

● their full name and department

● a summary of the grievance

● dates and times of any incidents, in chrono-logical order

● details of any witnesses or supporting evi-dence

● details of what efforts have been made to re-solve the complaint

● details of what resolution they would like

● details of who will accompany the employee at the grievance meeting.

Time limits on submitting a formal grievanceWhile organisations may encourage staff to airtheir grievances as they arise so that timelyresolutions can be achieved, for various reasonsemployees might submit a grievance some timeafter the event. Some organisations seek to deterthis by placing time limits on how long anemployee can wait before making a formalapproach. The length of time employees aregiven to raise a complaint varies, but they maybe given up to three months if an informalresolution has been attempted.

Investigating a grievanceBefore the first formal meeting, managers maywish to seek feedback from other parties.Investigations are often carried out by anemployee’s direct line manager, but where thegrievance is in relation to that manager or isparticularly sensitive for other reasons, animpartial manager or member of HR may beinvolved. In particularly complex cases, aspecialist third-party investigator may be called in.

A line manager’s investigations may involveasking for written responses from other partiesor holding initial meetings with employeesaffected by the grievance.

The grievance meetingThe Acas Code states that employers shouldarrange a formal meeting without unreasonabledelay after a grievance is received.

Seeking a resolution via mediation

Increasingly, organisations are looking at alternative means of dispute resolution that avoid the time, resources and upset required when a grievance is pursued through a formal process. A number of the grievance policies we examined refer to mediation as a possible means of reaching an amicable solution.

Mediation is usually offered where attempts at an informal resolution have failed. However, employers may also suspend a formal grievance process to pursue a mediated solution at any stage. And mediation or conciliation may be offered when the formal process has been exhausted in an effort to avoid the issue going to an employment tribunal.

We discuss mediation in greater detail, starting on page 26. A case study on East Sussex County Council’s successful in-house mediation service can be found on page 32. And a short case study on Derbyshire Constabulary’s dispute resolution procedure, which includes the option of mediation or joint problem-solving at the second stage, starts on page 38.



Employee will:� submit a grievance in writing (within 10 working days of receiving a response if the informal route has been followed)� give clear details of your grievance: � what happened at the informal stage (if applicable) � what they want as the outcome � if they wish to be represented or accompanied, and � who that is going to be� send it to your manager, or the confirming officer, if your grievance is with your own manager.

Manager repliesWithin 10 working days the manager will aim to:� write to the employee:� ask them to attend a hearing to discuss their grievance � ask them who will be present� advise them of their right to be accompanied, and� conduct any investigation that may be needed.

Grievance hearingAt the hearing, the manager will:� listen to their grievance� ask any relevant questions� review any other evidence� consider what happened at the informal stage, and� ask if mediation can resolve the issue.

Close of hearingThe manager will:� reconvene (if necessary)� sum up� consider their case� make a decision whether to uphold, partially uphold or dismiss their grievance, and� decide what action, if any, is required.

Decision and notificationThe manager will:� write to the employee, usually within 10 working days� advise of their decision� describe what actions, if any, are to be taken, and� advise them of their right to appeal, the timescales and who they appeal to.

Grievance meeting outcome: not satisfiedWithin 10 working days of receiving the response to their grievance the employee must:� submit an appeal in writing, and� send it to the manager referred to as the appeal manager in the decision letter.

Consider mediationIf both parties are willing:The manager will:� suspend the hearing,� contact the HR case manager to seek mediation, and� those involved will try to resolve the issue with a mediator.

Employee:� informs manager of outcome of mediation, and� returns case for decision.

Grievance outcome: satisfied� no further action needed.

The Forestry Commission's formal grievance procedure

Analysis


The time and placeMost employers aim to arrange a time for ameeting within five to ten working days ofreceiving the grievance letter. However, thelogistics of getting all the parties involvedtogether for a meeting can cause delays. Wherethe grievance relates to another employee, themeeting will not usually take place until thatperson has had an opportunity to consider aresponse.

For equal opportunities reasons, organisationsneed to consider the practicalities andaccessibility of a particular venue and anyassistance that employees may require. The non-statutory Acas Guide on discipline andgrievances at work suggests managers shouldalso ‘consider arranging for an interpreter wherethe employee has difficulty speaking English’.

The right to be accompaniedWorkers have a statutory right to beaccompanied by a companion at a grievancemeeting that deals with a complaint about a dutyowed by the employer to the worker. Acasexplains that: ‘This would apply where thecomplaint is, for example, that the employer isnot honouring the worker’s contract, or is inbreach of legislation.’

Postponing meetingsEmployees and their companions are expectedto make every effort to attend a formalgrievance meeting. Meetings may be postponedfor a valid reason – though usually not for morethan five days.

Conducting the meetingWhile feedback from other parties can provehelpful, the key element of the grievance processis the meeting with the aggrieved employee. Thegrievance meeting typically takes place betweenthe aggrieved party and the ‘investigating’manager. However, other parties may also beinvolved – for example, colleagues mentioned inthe grievance or members of HR to provideadvice and support.

At the meeting employees should be allowed toexplain their grievance and how they think itcould be resolved. The Acas Guide suggests thatmanagers should ‘remember that a grievancehearing is not the same as a disciplinary hearing,and is an occasion when discussion and dialoguemay lead to an amicable solution’. Moreover,grievances ‘are not normally issues calling forsnap decisions, and the employee may have beenholding the grievance for a long time’.

Time to reflectLine managers conducting a grievance hearingmay adjourn the meeting if they feel it necessaryto consider the information before them or togather further feedback from other parties. TheAcas Guide suggests that it is good practice toadjourn a meeting before making a decision on agrievance to allow time for reflection.

The decisionEmployers are expected to notify employees oftheir decision on the grievance in writing andwithin a reasonable timeframe. Within thegrievance procedures we analysed, mostemployers undertook to provide a writtenresponse within five to ten working days. Manystate that if this is not possible they will give anexplanation and inform the employee when aresponse can be expected. Some employersexpect line managers to inform employees of thedecision in person, in the first instance.

The written letter should set out the action themanager intends to take to resolve the grievance.It should also inform employees that they havethe right to appeal.

Keeping records

In the foreword to its Code of Practice, Acas advises employers to keep a record of any grievance cases that they deal with. Its Guide suggests that these records should include:

● the nature of the grievance● what was decided and the actions taken

● the reasons for the actions● whether an appeal was lodged● the outcome of the appeal

● any subsequent developments.

Maintaining confidentialityAll records should be treated as confidential and kept in accordance with the Data Protection Act 1998. This Act gives individuals the right to request and have access to personal data.

In its dispute resolution procedure, Derbyshire Constabulary states that: ‘Dispute resolution files are not kept on personal files; they are stored in a separate confidential filing system maintained by the Employee Relations Manager for a period of five years and in accordance with the Data Protection and Freedom of Information legislation.’

Monitoring the proceduresIf employers are actively seeking to reduce the number of grievances that progress to appeal (and potentially to an employment tribunal), it is helpful to build a picture of the current situation and the impact of existing procedures. Monitoring trends in the number, type and location of complaints can help inform amendments to the grievance process and the way it is managed.



Have you used the informal stage?

If not or if issue unresolved

Consider using informal stage

Stage One Grievance

Hear grievance and communicate outcome

Hear grievance and communicate outcome

Stage Two Grievance

Process concluded No further stages of grievance

➡➡➡

➡➡

➡

Successful resolution No further action



Grievance to be submitted in writing to line manager's

manager within 1 month of incident or 10 working days in case of

performance development

➡

Held within 10 working days of receipt

Held within 20 working days of receipt

Advise employee of outcome within 10 working days of

Stage One meeting

Advise employee of outcome within 10 working days of

Stage Two meeting

Grievance to be submitted in writing to the next senior

manager within 10 working days of Stage One decision

➡➡

➡

➡

➡

➡

➡

The grievance procedure at Barclays

Analysis


Lodging an appealThe Acas Code states that: ‘Where an employeefeels that their grievance has not beensatisfactorily resolved they should appeal.’ Someemployers provide guidance on the grounds onwhich employees can appeal. For example,Affinity Sutton states that appeals should bemade on at least one of the following grounds:

● The procedure has not been followed correctly

● There is new information available that impacts on the outcome

● The outcome is not satisfactory

● The original hearing was biased and unfair.

Allianz notes that: ‘Grievances cannot beescalated to level 3 purely because you disagreewith the decision made at levels 1 and 2.’

Who hears the appeal?According to the Acas Guide: ‘As far as isreasonably practicable, the appeal should bewith a more senior manager than the one whodealt with the original grievance.’ All thecompanies that participated in our researchfollow this guidance. Of course, in smallercompanies there may not be a more seniormanager available to hear the appeal. In thisinstance, another manager at the same levelshould be found if at all possible.

How many stagesMost of the companies we spoke to operated justone level of appeal. However, some – usuallylarger – organisations, allow employees to appealtwice. On each occasion, the appeal is heard by amore senior manager. As the process escalates, itis more likely that HR will be called on to attendthe meetings and offer advice. One organisation’spolicy had several levels of appeal, followingwhich employees’ grievances were referred toAcas for conciliation and then for arbitration.

Establishing timescalesEmployers typically expect employees to make aformal appeal within five to ten working days ofreceiving a written decision on their grievance,although some organisations give employeeslonger to consider their actions. The appealmeeting is then usually convened in a further fiveto ten days.

The Acas Code states that employers shouldwrite to employees with a decision as soon aspossible. The length of time employers allow forthis is again typically five to ten working days.

Collective grievancesWhere a number of employees have the samegrievance, employers often apply the sameprocedure as for an individual grievance. Thegrievance is typically raised in writing and signedby all parties, with representatives of the groupelected to attend the formal meeting. Forexample, RNIB’s policy states that: ‘Where agrievance is raised by a number of employees,they should agree which members of staff shouldrepresent them at the hearing/s. A maximum ofthree employees may be present with, if required,one trade union representative of their choice.’

Cereal Partners UK states in its grievance policythat: ‘In the case of a collective grievance it isaccepted by both parties that no form ofindustrial action or activity prejudicial to asatisfactory resolution will take place before thisprocedure is exhausted.’

The Acas Code does not apply to ‘grievancesraised on behalf of two or more employees by arepresentative of a recognised trade union orother appropriate workplace representative.These grievances should be handled inaccordance with the organisation’s collectivegrievance process.’

Many unionised employers make it clear in theirpolicies that collective grievances should behandled through accepted collective routes. AtNational Express East Coast, for example,collective grievances are dealt with throughcollective bargaining. If at any point it becomesapparent that an individual grievance has acollective application, the company refers it tothe appropriate level of its collective bargainingprocedure.

Appeal decisions are finalWhen informing employees of the decision ontheir grievance, employers should also tell themif the appeal meeting constitutes the final stageof the formal procedure. While mostorganisations set this out in their grievancepolicies, few make reference to the possibility oftaking the grievance to an employment tribunal.



Resolving disputes using mediationA growing number of organisations are looking for alternative means of dispute resolution that areless adversarial than existing formal procedures, as well as less costly and less damaging in terms ofemployee morale. Mediation can help resolve issues in a timely fashion before they escalate. Andunlike formal procedures and employment tribunals, it is non-judgmental. Mediation does not seekto find out who is right or wrong; it looks to help the parties involved in a dispute address theunderlying issues and rebuild their working relationship.

What is mediation?The Acas/CIPD employer’s guide to mediation1

defines mediation as ‘a voluntary process wherethe mediator helps two or more people in adispute to attempt to reach an agreement’.Mediators do not make a judgement or tell theparties involved in the dispute what course ofaction they should take. They are there tofacilitate a constructive discussion of the issue sothat the parties can themselves find a mutuallyacceptable resolution.

The business case for mediationMediation offers the potential for a quickresolution to a dispute. By getting the partiesinvolved talking about an issue, mediation canavoid the time and expense involved in pursuinga formal complaint. Moreover, unlike a formaldisciplinary or grievance hearing – or anemployment tribunal – mediation addresses theunderlying causes of a problem and seeks asolution that will help the parties involvedrebuild their working relationship. The Acas/CIPD guide argues that ‘employment tribunalsdo not resolve systematic problems at work thatmay underly an individual dispute’.

Traditional dispute resolution procedures aretypically adversarial – investigators look forevidence so that a decision can be made as towho is right or wrong. In contrast, mediation isconciliatory in nature. It enables employees totalk openly about their problems in a neutraland confidential environment.

Cost analysisHR teams looking to make a business case forthe introduction of mediation usually start bycalculating the cost of handling workplacedisputes using existing procedures. A formalgrievance requires the time of a line manager to

investigate the issue, another line manager tohear the case and HR to provide support. If theissue escalates to the appeals stage, further HRand line manager (usually a more seniormanager) time is required. If the case is thentaken to an employment tribunal, there will beadditional legal costs as well as damages to payif the employer loses the case. And this is beforethe costs of any sickness absence or a drop inemployee morale is taken into account.

East Sussex County Council estimates that takinga grievance through its formal three-stageprocedure demands 32 days of HR and managertime. Using the average salary of a personnelofficer, it estimates the average cost of dealing witha grievance as £18,000. In contrast, it calculatesthe cost of resolving an average mediation case as£2,400. (See page 32 for a detailed case study onthe council’s mediation service.)

When to mediate

What type of dispute can be mediated?Mediation can be used to address a wide rangeof issues. It perhaps lends itself best to tacklinggrievances, particularly where the issue has beencaused by the breakdown of a workingrelationship. However, mediation may notalways be appropriate. The Acas/CIPD guidesuggests that ‘managers may not always see it asappropriate to surrender their discretion inrelation to disciplinary issues where they believea point of principle is at stake’.

At what stage should you offer mediaton?At organisations where mediation is available, itis usually offered at the informal stage – before aformal grievance has been raised. Mostcommentators agree that the healthiest approachis for a team to find its own solutions to any issuesthat arise. But if a line manager’s attempts to findan informal solution fail, early interventionthrough mediation can help tackle an issue beforeboth sides’ positions become entrenched. That is not to say that mediation cannot be usedsuccessfully after formal procedures have begun.

1 Mediation: An employer’s guide, produced by Acas and the CIPD, can be downloaded from www.acas.org.uk. The guide includes case study material from nine organisations.

Analysis


Q&A: Acas mediation services

Keith Mizon, Director, Individual Dispute Resolution at Acas National, discusses the mediation services offered by Acas.

What is mediation?Mediation involves a neutral third-party trying to assist two or more parties reach a voluntary resolution of a dispute. The key to successful mediation is that the mediator remains independent and impartial. And the parties involved must be reassured about the confidentiality of the process. The mediator does not impose a resolution – although that’s not to say a mediator won’t make suggestions. Ultimately, it’s for the parties themselves to decide the resolution.

Mediation can happen face-to-face, over the phone, using videoconferencing facilities or by e-mail. All sorts of media can be used. It doesn’t matter as long as communications are opened up and the parties engage in trying to find a solution.

Are mediation and conciliation different?The vocabulary of dispute resolution can sometimes confuse people and it’s not always helpful to get hung up with labels, which can often have more to do with context and history. A traditional view, largely based on collective dispute resolution, is that conciliators tentatively suggest, mediators recommend, and arbitrators decide. But these days I think it’s more helpful to think of mediation and conciliation as the same thing, although there may be different models of each – for example: facilitative, transformative, evaluative and directive.

When is it time to seek mediation?It’s important to think through when best to offer mediation and to ensure your procedures are flexible as to when it can be provided. It shouldn’t be ruled out at any stage. But generally the earlier the better – before people have dug in their heels, but not before they have had a go at resolving things directly. If mediators are involved too early they can get in the way of an internal resolution.

What mediation services do Acas offer?We have a statutory commitment to offer mediation to employers and employees involved in an employment tribunal claim, and we manage to broker a resolution in about three quarters of such cases.

From 6 April, Acas also has a statutory power to take on cases that could be the subject of an employment tribunal claim. We call this pre-claim conciliation (PCC). In fact, it isn’t new. But it’s only now that we have the resources to go out looking for these cases.

Our Helpline receives over a million calls every year – mostly but by no means exclusively from employees. If an adviser thinks the caller is likely to lodge an ET1 claim form [an application to an employment tribunal], or the employer caller is likely to be the subject of a claim, he or she will suggest our PCC service. An Acas conciliator then talks through the issue in more detail and contacts the other party involved to determine whether they are open to mediation.

We’re steadily growing this service. But it takes time to train conciliators. And it has been challenging given the tsunami of tribunal claims we’ve been involved with as a result of the economic situation. That said, between April and September this year we handled 3,500 referrals from our Helpline – and in over 70 per cent no tribunal claim ended up being made.

Do you provide mediation services in situations unlikely to end up at tribunal?The Department for Business, Innovation and Skills fund our statutory work. But we also provide a charged service for individual disputes that couldn’t be resolved through judicial determination – for example, when people simply fall out with each other. And we offer a Certificate in Internal Workplace Mediation programme so that organisations can train their own people to act as mediators.

Can an internal mediator be impartial?Internal schemes probably work best for large organisations. It’s more difficult for smaller, single site companies to get over the impartiality hurdle. But the training can still prove beneficial in helping line managers improve their skills when it comes to handling difficult conversations about discipline and grievance. The importance of training managers in the skills to handle these situations is often overlooked. You can have excellent policies and procedures, but are your managers trained and equipped to apply them effectively?

A three-month time limit applies to most employment tribunal claims. Does this make it hard to promote mediation?It’s well known that during the consultation about the new tribunal regulations Acas argued that they should allow discretion for employment tribunals to allow longer than three months where mediation and conciliation were being attempted. Sometimes mediation fails simply because the mediator runs out of time. That said, the process can’t be open-ended – one party might seek to string it out forever. And anyway, from the mediator’s perspective, having a deadline can be very helpful in concentrating people’s minds.

Can mediation reduce the number of cases going to tribunal?All other things being equal, we believe PCC could potentially make a significant dent in the number of employment tribunal claims. But the overall figure won’t necessarily go down. There are so many other factors that are out of our control – not least the economy.

Can you help resolve collective grievances?Unlike individual disputes, most collective grievances often have nowhere else to go – a judge can’t make a ruling on an argument over pay or conditions. We offer conciliation as an impartial, independent third-party to help parties reach an agreement. If that fails, we can offer directive mediation or arbitration. Conciliation of this type should only be sought after internal machinery has failed. It is far healthier for organisations to reach agreements in-house than become reliant on calling in a third-party to settle wage disputes.



Mediation can be used at any stage to help theparties involved reach a mutual agreement. Evenwhere an employee has lost a grievance caseagainst his or her immediate line manager afterappeal, mediation may be used to help rebuildworking relationships. And in some instances, amediator may be called in to help hammer out afinancial settlement and avoid a tribunal.

A voluntary processAll proponents of mediation agree thatmediation can only be successful if all partiesenter into it of their own accord. All parties mustbe engaged with the process and be ready tocompromise to find a solution. Mediationcannot work where an employee has beencoerced down this route – it is vital that thoseinvolved are ready to talk openly about theirissues and want to find a way forward.

In-house or third-party mediationMediation services are available from a numberof not-for-profit and private specialistorganisations. By using a third-party mediator,employers can help reassure staff that the processis independent and completely confidential.

Establishing an internal pool of mediatorsSome employers – such as East Sussex CountyCouncil and Derbyshire Police – haveestablished their own in-house mediation teams.This is likely to be a more realistic option forlarger organisations that can better reassuredisputants that they can call on internalmediators from a different part of the business tohelp ensure impartiality. Employers that have setup in-house pools of mediators argue that theycan be more effective than those provided by athird-party as they have a better understandingof the organisation’s culture.

Training mediatorsOrganisations that are thinking of setting upinternal mediation teams need to arrangesuitable training. They also need to give thoughtto how to select staff to become mediators.Organisations should aim to involve a goodcross-section of staff. Even if they then do not goon to actively mediate any cases, internalmediators can help embed a culture of mediationwithin an organisation.

Moreover, developing the skills required of agood mediator – encompassing active listening,conflict management, negotiation, problem-solving and questioning – can only help line

managers to manage their teams more effectivelyon a day-to-day basis. The Acas/CIPD guidestates: ‘Training staff in mediation skills generally,to encourage the right management style and theorganisational capacity to deal with conflict on aday-to-day basis, is a good way to help preventdisputes happening in the first place.’

Acas and other mediation services offercertificates in workplace mediation. Experience isthen vital to help mediators hone their skills and,perhaps most importantly, build their confidence.

Mediators may have to handle emotive subjectsand emotional people. It is therefore importantthat they have support networks in place andthat provision is made for ongoing training andprofessional development.

Best of both worldsIn practice, employers with their own in-housemediation services may also call in externalmediators from time to time. A third-partymediator may be used because internalmediators already have some involvement in acase and would not be impartial. In someinstances, the case may be considered toocomplex for the internal team and a moreexperienced professional mediator may bepreferred.

The mediation processThe exact approach taken to mediation mayvary depending on the nature of a particularcase. However, broadly speaking, the keyelements remain the same.

Arranging mediationOne of the parties involved in a dispute – oftenthe line manager – first contacts a schemeco-ordinator to request mediation. A mediator isthen chosen and he or she contacts both partiesto explain what the mediation process willinvolve. The mediator must gain their agreementto participate in mediation and to compromiseto find a solution.

Maintaining confidentialityBefore the mediation itself takes place, bothparties are usually required to sign aconfidentiality agreement. It is important thatthe parties involved in mediation are assured ofthe confidentiality of the process. The process ismore likely to address the underlying issues if theparticipants feel they can be open and honest intheir discussions.

Analysis


Q&A: An expert’s view of mediation

We asked David Liddle, founder of The TCM Group – a leading provider of mediation services – why UK employers should consider mediation and how it works in practice.

What is mediation?Mediation, a major element of Alternative Dispute Resolution (ADR), is a process whereby a neutral third party intervenes in a workplace conflict or dispute to assist the parties in reaching a satisfactory outcome. The mediator isn’t there to apportion blame or judge. They are there to facilitate an open exchange of views and help the conflicting parties restore their relationship.

Why mediate?Employers put a lot of effort into creating an engaging and productive workplace culture. But when it comes to conflict at work, formal dispute resolution procedures can be adversarial. Investigations can drag on; managers may become stressed; and employees can end up off work sick for months. Once a decision has been made there are typically no processes in place to help the parties involved rebuild their working relationship.

Mediation offers an approach to dispute resolution that fits with employers’ values. Mediation is a constructive approach that focuses on relationships in the past, the present and in the future. People feel listened to and can talk openly in a safe environment.

When does mediation work best?Mediation is most effective when both parties are committed to entering into a dialogue and are engaged with the process. It works well in very complex situations where conflicts feel completely intractable – where the parties are desperate to find a solution because of the impact the dispute is having at work and at home.

Mediation also sits comfortably at the beginning of the dispute resolution process where an informal resolution is being sought. In essence mediation can be used effectively at any stage of a dispute.

We offer restorative mediation to help employees back into work following a long absence, an appeal or suspension. Mediation can also help in negotiating an amicable employee exit and avoid the large sums that may be payable if a case goes to tribunal.

Who makes a good mediator?Whilst I think everyone has an inherent capacity to mediate, workplace mediators do require training to help them manage the process effectively. A good mediator must be able to listen, engage, take views seriously, and recognise that no one’s views are necessarily right or wrong.

How does the mediation process work?A referral is made to either TCM or an internal co-ordinator who formalises the arrangement and advises the parties. The mediator then talks to the parties on the phone and answers questions about the process – the dispute itself is not discussed at this stage.

The mediation itself takes place in the space of one full day. First the mediator meets each party separately to let them air their grievances. This in itself can be quite cathartic even before the parties have been brought together. Unlike most other mediators, we run two pre-mediation sessions. At the second the mediator is more active and asks more challenging questions. The aim is to get each party to consider carefully what they want to say and how they think they should say it to help ensure a constructive meeting.

After lunch the parties get together. There are clear ground rules and a confidentiality agreement. Both parties are invited to speak in turn, uninterrupted. We then encourage a free exchange of views and ideas and help the parties construct an action plan. The mediator is non-directive and never suggests a solution.

How do you stop issues resurfacing?It’s almost inevitable that conflict will reoccur. People who have been in a dispute don’t become best friends over night. We offer a 12-month period of follow-up support so people aren’t just left to their own devices.

How can I measure the impact of mediation?If you’re looking to put together a business case for mediation it is advisable to start by carrying out a ‘Conflict MOT’ of your current conflict processes. The MOT examines the cost of conflict to your business in terms of HR and line manager time. Using mediation frees HR to focus on strategy and helps avoid the cost – in terms of money, time and morale – of going to tribunal.

How do you embed mediation?It’s important to have buy-in from the chief executive, senior managers and from trade unions. Mediation needs to be visible in dispute resolution procedures. If not, people are likely to reject it on the grounds they don’t want to be experimented on. I also think it’s crucial that investigating officers and managers chairing appeals understand the potential of mediation.

About The TCM Group (TCM)TCM was formed in 2001. Its services include workplace mediation, internal mediation scheme design, mediation training, Conflict MOTs and independent workplace investigations. Its recent clients include Transport for London, DWP, American Airlines, Topshop/Topman and BT Retail. For more information visit www.thetcmgroup.co.uk



Bringing people togetherThe mediation itself often occurs in the space ofa single day. The mediator meets the partiesseparately to discuss their views and what theywant to say. The mediator does not suggest whatthey should say but gets them to think about howtheir comments may be interpreted by the otherparty. The aim is to ready both parties to have aconstructive conversation when they meet.

At the joint session the mediator acts as afacilitator. He or she may question the parties tohelp them reach an agreed solution, but will notsuggest an answer. The mediator remains incharge of the process at all times and may decideto separate the parties at certain points andspeak to them individually – particularly if talksreach an impasse.

CompanionsEmployees undergoing mediation are usuallyallowed to bring a companion to the jointsession. In some cases, the companion mayspeak on an employee’s behalf – for example, ifa relationship has deteriorated to such an extentthat the parties cannot bear to speak to eachother. However, it is generally accepted thatmediation works best if the parties involved talkdirectly and agree a resolution together. TheAcas/CIPD guide argues that involvingrepresentatives can formalise the process andthere can ‘be a tendency for representatives toshift the emphasis from joint problem-solving tonegotiating for the best deal for their candidate’.

More than one mediatorSome organisations (such as East Sussex CountyCouncil) use two mediators for each case – alead and an assistant. This puts a greaterdemand on resources, but means the leadmediator has someone to bounce ideas off.Moreover, it allows newly qualified mediators toexperience a mediation session and develop theirskills without having the pressure of takingresponsibility for the case.

The right surroundingsChoosing the right location for mediation canhelp engage the parties and ensure a positiveoutcome. Ideally, mediation should occur off-site in a neutral location. This reinforces thesense of confidentiality and impartiality andremoves the parties from the scene of conflict.Break-out rooms should be available if themediator needs to split the parties up so thatthey can cool off or because he or she wants totalk to them individually.

Reaching agreementBy the end of the mediation session, the partiesshould be ready to sign an agreement. This setsout what actions they will take to resolve thedispute and help ensure they can work togetherwithout further issues arising.

When relationships fail againOf course, if a relationship has deteriorated tosuch an extent that mediation is required, it ismore than likely that there will be furtherproblems. At East Sussex County Council, reviewmeetings are held after six weeks, three monthsand six months to check that all parties aresticking to the agreement made during mediation.

Embedding mediationIntroducing mediation can represent asignificant shift in the way disputes are handledin an organisation. Achieving buy-in from seniormanagers is vital if this culture change is to beachieved and a culture of mediation is to beembedded successfully. They will have to sign offany funds required to purchase third-partyassistance or train an in-house team. And seniormanagement support helps give the scheme morecredibility.

Line manager buy-inBuy-in from line managers is also important.They typically have the greatest part to play inmanaging discipline and grievances. If they arenot won over to the concept of mediation it isunlikely to become embedded within commonworking practices as a favoured means ofhandling disputes.

Winning over the trade unionsThe Acas/CIPD guide recognises that: ‘Sometrade union representatives could perceive thatmediation will weaken their own role, forexample, or that individuals’ statutory rightscould be undermined.’ One of the grievancepolicies we examined included a paragraphsuggesting mediation as a possible option todispute resolution, but noted that it was not theapproach favoured by the company’s recognisedtrade union.

In a heavily unionised workplace, having tradeunion support is essential if mediation is to takehold. This can best be achieved by involvingunions in the design of any scheme from theoutset. East Sussex County Council’s recognisedtrade unions were involved from the conceptionof the mediation process and throughout its

Analysis


design and roll-out. Four trade union stewardsat the council were trained to become mediators.

Employee communicationsEmployers use a wide variety of means tocommunicate their mediation services. Somemay go for a ‘big bang’ approach on launch,with flyers, posters and roadshows. Pilotingmediation in the first instance can also helpensure a smoother roll out of the service.

Building mediation into formal proceduresEmployees are likely to feel more comfortableusing mediation if it is built into a company’sformal dispute resolution procedures. Whereemployers have done this, mediation is usuallyoffered as an option at the informal stage. Onepolicy we examined stated that mediation isconsidered before a minor issue escalates toformal disciplinary action, and after a first orfinal written warning – depending on the natureof the misconduct. Another employer’s grievancepolicy said that following the appeal process, the

next stage was to use Acas conciliation and thenAcas arbitration.

At East Sussex County Council, contracts ofemployment now state that mediation is thepreferred method of addressing workplacedisputes. Its grievance and dignity at workpolicies require managers to offer mediation as amethod of resolving a formal dispute beforebeginning formal investigations. At DerbyshireConstabulary (see the short case study on page38) mediation is an option at the second stage ofthe dispute resolution procedure.

A holistic approachMediators accept that mediation is no panacea. Itis not suitable in every circumstance. And linemanagers should not view mediation as a way ofavoiding difficult conversations with their teams.Mediation is just one element in a holisticapproach to dispute management, which alsoincludes informal resolution and formalprocedures.


case studies

East Sussex County Council introduces mediation East Sussex County Council introduced an in-house workplace mediation service in 2008. The councilestimates that since rolling out the service it has saved over £500,000 by reducing the time spenthandling disputes by HR and managers. Mediation is now recognised as the council’s preferredmethod of dispute resolution. By involving trade union representatives from the start and trainingthem as mediators, the council has also seen a transformation in its relationship with the unionswhen it comes to managing conflict at work.

New approach to conflictThe impact of conflict at workIn 2006/07, there were 44 formal workplacedisputes at East Sussex County Council – andthere were 59 the following year. The councilestimates that each dispute demanded 32 days ofan HR adviser’s time, with a similarcommitment required by line managers, legaladvisers and trade union representatives.

‘But as well as these more direct costs, conflict atwork impacts on morale and can result inincreased employee absence,’ explains LeathamGreen, the council’s Assistant Director of HR.‘When lines of communication collapse at workit can have a negative impact not only onworking relationships but also on employees’family lives. Traditional grievance and dignity atwork policies don’t effectively address in atimely way the underlying issues or seek aconstructive resolution.’

‘For some time I had thought there must be abetter way to handle conflict at work,’ continuesGreen. ‘Dignity at work investigations nearlyalways result in everyone walking awayunhappy. And similarly, there are generally nowinners if a formal grievance is instigated.Having that kind of bad feeling can’t be healthyfor an organisation or for the individualsinvolved. The emotional damage can’t bequantified.’

Green began considering mediation as a moreconstructive approach to conflict resolutionfollowing a conversation with a local Unisonbranch secretary, Tony Watson. ‘Tony had usedmediation successfully in the past,’ says Green,‘and we agreed that we should explore itspossible use at the council.’

An in-house mediation teamThe council decided to introduce its ownin-house mediation team. The project wasmanaged by a multidisciplinary team, includingGreen and Watson, as well as the council’s Headof HR Strategy, the Head of Personnel Services,the Head of Workforce Planning and Training

and the Head of Legal Services. ‘We thought thathaving in-house capability would be better thanrelying on external mediators,’ explains Green.‘Cost was a key factor – external mediators cancharge as much as £3,000 a day. But we alsowanted a service staffed by people with agenuine understanding of how business is donewithin the council and a positive commitment toimproving the culture of the council over thelong term.’

Agreeing investmentThe initial outlay to train 16 internal mediatorswas £25,000. ‘That may sound like a lot, but it’snot a huge amount when you take intoconsideration the budget of a council with nearto 17,000 staff,’ says Green. ‘And not when youlook at the potential cost savings.’

The investment was signed off by the ChiefExecutive and the finances were drawn from thecouncil’s ‘Invest to Save’ fund. ‘Money isavailable from this fund if you can demonstratethrough a robust business case a return oninvestment,’ explains Green. ‘I guaranteed areturn of £100,000 in year one through areduction in time to resolve conflict, reducedcosts in absence and back fill of time lostthrough attending formal investigations.’

Selecting a supplierGreen contacted a number of specialist suppliersbefore selecting Globis (www.globis.co.uk) totrain the council’s in-house mediation team.‘Their value base fits with what we wanted toachieve,’ explains Green. ‘And their ManagingDirector, Clive Lewis, has an outstanding trackrecord and high professional credibility.’

About East Sussex County Council

East Sussex County Council is a four-star, excellent rated authority and has 17,000 employees across more than 500 locations.

It provides a range of local services – from education, social care to children and adults, library services and transport, to trading standards, registrar services and support for local Councillors – to a population of 700,000.

East Sussex County Council


Choosing candidatesThe council chose to train a team of 16 people toact as mediators, all of whom had influentialpositions within the council. Four of thoseselected to become mediators were trade unionstewards. The aim was to embed the idea ofmediation by winning buy-in from the mostsenior levels of the organisation and from theunions. ‘We thought that even if they nevermediated a case they would prove invaluable inspreading the word that this was the rightapproach to dispute resolution,’ says Green.

Training mediatorsAccording to Green, the training to become anaccredited mediator was exhausting andpossibly the most emotionally challenging he hasever undertaken. ‘I really felt like I’d been testedto the limit of my skills,’ he says. ‘Not everyonepassed. That’s good because it shows it’s not awalk in the park – not everyone can mediateeffectively and successfully. It led to some prettydifficult conversations with those colleagueswho didn’t meet the standard. However, in allcases we were able to draw on the positives fromthe training event itself.’

Pilot exerciseOnce the internal team of mediators had beenfully trained, a short pilot was run to see ifin-house mediation would work. This involvedapproaching people within the council andasking them to allow internal mediators to takeon their disputes. ‘During the pilot we mediatedon eight cases, including one external to thecouncil,’ explains Green. ‘All the cases weremediated successfully in one day. Two of thecases involved employees who had been absentfrom work for over six months and on bothoccasions they returned to work immediately.’

Learning through experienceThe council’s mediators also honed their skillsby working as assistants on cases being handledby Globis for other organisations. ‘Mediatorstypically act as an assistant for a number of casesbefore taking the lead on a case. This allowsthem to build their confidence and experience,’says Green. ‘Of course, we never put pressure onanyone to become a lead mediator. Some peoplewill probably never feel comfortable taking onthat responsibility.’

Achieving cultural changeThe project team building the case for mediationwas looking to deliver more than just internalcapability. ‘Our aim was to drive through achange in the culture of how disputes were

handled,’ explains Green. ‘As an employer, thecouncil is good at holding its hands up when ithas done something wrong and seeking to rectifyit quickly. That’s demonstrated by staff surveyresults and employee engagement scores. But thegrievance and dignity at work policies wentagainst this ethos. We wanted our approach totackling disputes to be about seeking aresolution.’

Making the business caseTo achieve this change, the project group soughtformal approval from the council to revisecontracts of employment and relevant policydocuments to include mediation as the preferredmethod of dispute resolution. The business casewas grounded on a calculation of the cost offollowing the existing formal process comparedwith the cost of mediation (see the box on page34). ‘This was easy to put together,’ says Green.‘In fact, we significantly underestimated the costof the formal process and the cost savings wewere able to promise were still large.’

First, the business case had to be presented to theHR Management Board. ‘This is effectively HR’sclient group, with representatives from eachdepartment at assistant director or directorlevel,’ explains Green. Next it had to be putbefore the Chief Officer Management Team andto council members, as it involved a change toemployees’ contracts of employment. Followingthis, the approval of the Governance Committeewas required and finally the endorsement of thefull County Council.

‘This whole process takes about three months ifyou get your timing right,’ says Green. ‘Butrunning up to that I spent 12 months preparing:talking to the unions, department heads, assistantdirectors and directors to achieve buy-in. By thetime the proposal went to the various committeesI was confident it would be signed off.’

Who makes a good mediator

According to Leatham Green, East Sussex County Council’s Assistant Director of HR, good mediators must be able to suspend their judgement and remain neutral. ‘They need to keep a balanced view. They must be able to listen and influence,’ he explains. ‘I also think it’s really important that they have some presence and gravitas in the room.’

The council’s mediators do not provide therapy or counselling. ‘But the process does let people release their feelings,’ says Green. ‘And for this reason mediators need emotional resilience, energy and a strong belief that the process will work.’



Trade union backingThe proposed changes to contracts and policiesalso had to be agreed with the council’s tradeunions. ‘These include Unison, Unite and theGMB for managerial and administrative staffand all of the recognised teacher unions forschools,’ says Green.

It proved relatively simple to win union backingfor the proposals. ‘Trade union colleagues hadbeen part of the idea from its very conceptionand we kept them involved throughout thedesign and roll-out,’ says Green. ‘The tradeunion stewards who were trained as mediatorswere great champions for mediation and TonyWatson, our local Unison branch secretary, wasstrongly supportive of the idea from the outset.’

Amending contracts of employmentThe council’s contracts of employment andpolicies on dignity at work, attendancemanagement and grievance have all now beenamended. ‘There were no fundamental changesto the processes, but we introduced a new ethos– a new model for how conflict should beapproached,’ says Green.

The contracts of employment now state thatmediation is the preferred method of addressingworkplace disputes. All new employees are madeaware of this and existing employees were sentcommunications to this effect. The grievanceand dignity at work policies now requiremanagers to offer mediation as a method ofresolving a dispute before beginning formalinvestigations.

The mediation serviceWhen to mediateEast Sussex County Council believes thatmediation can be an effective method ofresolving all types of workplace disputes. Thesecould include: communication issues;personality clashes; unresolved or ongoinggrievance issues; perceived discrimination,harassment or bullying; differences of workingstyle or approach; and inappropriate use ofpower, status or position.

According to Green, mediation can proveeffective for cases relating to poor attendancewhere the underlying issue relates to stress,bullying or a breakdown of a workingrelationship. He believes group disputes can alsobe mediated ‘provided all parties are on board’.

In the case of an employee grievance, East SussexCounty Council first expects line managers toseek an informal resolution. However, if thisproves impossible they are encouraged toconsider mediation. ‘It’s possible that at this stagean employee may reject the offer of mediationbecause they don’t understand exactly what itmeans,’ says Green. ‘But that doesn’t meanmediation can’t be used effectively later on, evenafter a formal grievance has been raised.’

Following the first stage of the formal grievanceprocedure – which involves an investigation andgrievance hearing – employees may again beoffered mediation if they are unhappy with theresult. ‘And we’ll offer it again and againfollowing each stage of the procedure in aneffort to find an amicable solution before it goesto tribunal. In 2008, we had six grievance casesready to go to employment tribunal – only onedid,’ says Green. ‘In the vast majority of cases wecan use mediation at some point to find aresolution. Obviously, the further into theformal process you are, the more likelymediation is simply going to be aboutnegotiating a settlement figure.’

Self-financing serviceThe council’s mediation service is self-financingand charges internal (and external) users. Thereis no budget for the service so the charges arenecessary to pay for training and resources tokeep mediators’ skills up to date.

Managers are charged £800 a day tocommission the internal mediation team. Theyare also expected to pay for a suitable venue.‘This may seem a lot of money to charge aninternal client,’ says Green. ‘But the service isn’tabout letting line managers abdicate their

Calculating the cost of disputes

The business case for establishing mediation as the preferred method of dispute resolution at East Sussex County Council was based on a detailed cost analysis. The mediation project team estimated that, on average, taking a grievance through the formal three-stage procedure demanded 32 days of HR and manager time. ‘A complex or collective grievance could demand two or three times that,’ says Leatham Green, the council’s Assistant Director of HR.

The cost of the average grievance was calculated at £18,000 using the average salary of a personnel officer. This figure was verified by the council’s internal audit team. ‘Of course, most of the people involved as the grievance escalates are on higher salaries, so our figure is quite conservative,’ Green continues. ‘We were spending all this money defending a case – not trying to resolve it. In contrast, the cost in time of resolving an average mediation case is £2,400.’



responsibility to manage their staff. Mediationshould be called on when the issue is outside amanager’s skill set. Anyway, it’s likely to cost thecouncil much more if it isn’t dealt with.’

Green says that most managers don’t quibbleabout the price as ‘by the time they come to usthey are grateful for the help’.

Choosing the mediatorsEach case is tackled by two mediators – a leadand an assistant. Thought is always given to whoshould mediate a particular case and who shouldassist. ‘Getting the match right can really makea difference – for example, teaming up a strongcommunicator who is good with the emotionalside with someone who is good at closing a dealworks well,’ explains Green. ‘Having unionrepresentatives act as mediators has provenparticularly effective in certain instances. And ithas improved the relationship between HR andthe unions when it comes to dispute resolution.’

Pre-mediationBefore mediation begins, the lead mediatorcontacts each party to assess the situation andtheir willingness to reach a compromise. Thisusually takes the form of face-to-face meetingsor telephone conversations, which typically lastan hour but may run to two.

‘The mediator is not looking back or trying todetermine who is wrong or right,’ explainsGreen. ‘If one person isn’t ready or willing tomove, in most cases mediation won’t work. Andif one party only enters mediation because theyhave been instructed to, it is also likely to fail.’

Both parties must sign a pre-mediationagreement. This covers aspects relating toconfidentiality, and the fact mediation isvoluntary and entered into willingly.

One day of mediationThe mediation process itself is usually all carriedout in the space of one day. The day starts ataround 9am and participants are told that thereis no ‘end point’ unless this has been agreed aspart of the pre-mediation discussions. ‘We tryand keep the mediation to one day so that wedon’t lose momentum’ says Green. ‘The latestwe’ve ever run to is 8pm.’

VenueMediation is always carried out off site in aquality venue to reinforce the message toparticipants that there is importance attached tothe process and that it is neutral. Both parties arebrought together in the same room at thebeginning of the mediation and then retire to

private rooms. On occasions throughout the daythey may be brought together. The mediationends with a joint meeting where the parties agreeto the terms of the settlement or confirm that anagreement has not been reached. The parties canbring as many companions as they like.‘Whatever makes them feel most comfortable –although we always try to keep this to aminimum,’ says Green.

Opening statementsEach party is asked to make an openingstatement – usually the employee who has madea complaint is asked to speak first. This shouldcover the key facts of the case from his or herperspective and set out what he or she hopes toachieve. The other party cannot interrupt orcomment, or seek to clarify points. ‘They have to

How mediation works at East Sussex County Council

The following is reproduced from East Sussex County Council’s guide to its workplace mediation service, which staff can download from the HR intranet:

Stage one: separate meetings with the partiesThe mediator will meet the parties individually to:

● explain the mediation process, including confidentiality, and the role of the mediator

● explore the core issues and identify the ideal outcome for both parties.

The mediator may need to meet either or both parties on more than one occasion to clarify any further issues arising from stage one.

Stage two: face-to-face mediationThe mediator will ensure that a suitable venue has been arranged where there will be no interruptions and confidentiality can be maintained. The mediator will:

Set the scene● establish the ground rules for the meeting (eg the need to respect

and listen to each other’s views, confidentiality etc)● provide uninterrupted time for each party to set out the issues as

they see them● agree an agenda of issues to be explored and discussed further.

Explore the issues● explore the issues with both parties● encourage open communication

● identify people’s concerns about the issues● encourage a change of focus from the past to the future● summarise areas of consensus and disagreement.

Build an agreementMediation will work towards:

● generating and assessing options

● encouraging problem solving● an acceptance or acknowledgement of conciliatory gestures● constructing a mutually acceptable agreement for a more positive

way of working for the future and creating fall-back arrangements

● identifying what happens next if no agreement can be reached.



sit and listen and allow the other party to air theirviews fully, and ensure they listen to what is said.This allows each party to get their feelings offtheir chest without having to defend theircomments,’ explains Green. ‘You don’t get thisopportunity to talk about how you feel at aformal grievance hearing or at tribunal, and oftenthis is what allows a settlement to be achieved.’

‘We encourage each party to speak forthemselves,’ continues Green. ‘However, theymay elect a representative to speak on theirbehalf. Sometimes the relationship between thetwo parties has broken down to such an extentthat they can’t talk to each other directly.’

Talking to parties individuallyFollowing the opening statements, the leadmediator may consider it necessary to talk to oneor more of the individuals in private. ‘Themediator is in charge and must be trusted byboth parties to manage the process,’ says Green.‘For example, it may be necessary to remind asolicitor present that this is not a court of law –the aim is to reach an agreement that is suitableto both parties and not debate the finer points ofa policy or a point of law.’

‘Some people get a lot just from unloading theirfeelings on the mediator at the break-outsessions,’ continues Green.

Reaching agreementIf an agreement is reached, it is signed by bothparties and witnessed by the mediator. ‘It’s not

legally binding but we do see it as morallybinding,’ says Green. Any agreement involvingan employee exit will be confirmed in acompromise agreement.

Follow-up sessionsReview meetings are held after six weeks, threemonths and six months to check that both partiesare sticking to the agreement (except wheremediation has involved an exit). Either party cancontact the mediators at any point between thesedates to discuss any issues that arise.

‘It’s unlikely that two people who have beeninvolved in a dispute will ever be the best offriends and it would be naïve to think problemswon’t arise again,’ says Green. ‘When it’s anissue between an employee and their manager,we expect the manager to be flexible. Ourposition is that managers are responsible fortheir employees’ welfare. There is a greaterweight on them to comply with the agreementand take the lead in rebuilding the relationship.’

Calling on external expertiseNine out of ten cases where mediation isrequested are now handled in-house. But externalmediators are used if the demands of a case gobeyond the experience level of the internalmediators. Moreover, there are some long-termdisputes at the council pending employmenttribunal. ‘In these cases, many of our internalmediators – particularly from the HR and tradeunion side – have already had some involvementin the formal grievance process and thereforecan’t mediate,’ explains Green.

A success storyIn 2008/09, all 34 cases referred to East SussexCounty Council’s mediation team were resolvedsuccessfully. In the same period the number offormal workplace disputes fell by 47 per cent.Three employees returned from long-term sickleave immediately after mediation.

£500,000 savedThe council recouped its initial £25,000investment in just one month. HR has calculatedthat on average it takes three days to resolve anissue using mediation, compared to 32 days witha formal grievance process – in terms of cost, thisequates to an outlay of £2,400 instead of£18,000. ‘We estimate that in total we’vereduced the time spent by managers and HR ontackling workplace disputes by 5,000 days,’ saysGreen. ‘On the basis of a personnel officer’saverage salary that means savings for the councilof over £500,000. And an indirect benefit of

Supporting mediators

There are a variety of support mechanisms in place for East Sussex County Council’s mediation team. ‘This is important as mediators often have to deal with highly charged and emotional situations,’ explains Leatham Green, the council’s Assistant Director of HR.

Mediators’ networkThe council has established a mediators’ network to enable its mediators to support one another. Meetings take place once a month at which the mediators can share learning points about what works and what doesn’t work in particular situations.

Working in pairsTwo mediators are assigned to each case – a lead and an assistant. The lead is responsible for helping the parties come to a mutually acceptable agreement; the assistant acts as a valuable sounding board. In addition, there is always another mediator on call who the lead can contact for advice.

Sharing case summariesMediators are expected to write a case summary following each mediation session. This does not detail the discussions – these remain confidential, with all notes apart from the agreement destroyed following mediation. Its purpose is to outline what worked well in particular situations – for example, when someone started crying – so that the whole mediation team can learn from each case.



involving mediators is that HR has more time tofocus on strategy.’

Gaining wider recognitionThe mediation service is gaining wider recognitionboth within and outside the council. The teamnow mediates on commercial disputes for thecouncil. ‘We have been able to resolve commercialdisputes over contracts worth thousands ofpounds,’ says Green. The team is also now usedby three other local public sector organisationsand has received interest from private sectoremployers. And the council is a finalist in theCIPD People Management Awards 2009 for itsintroduction of workplace mediation.

Working with the unionsGreen believes that the mediation service is thebest HR initiative the council has ever rolled out:‘The cost savings speak for themselves. But more

than that we have successfully introduced a newculture around handling workplace disputes –one that really seeks to address the underlyingissues and find workable solutions.’

‘Perhaps most gratifying is the fact that themediation project – and in particular havingunion stewards acting as mediators – hascompletely changed our relationship with thetrade unions when it comes to conflict at work,’continues Green. ‘Before, where formalgrievances were being pursued, both partiestended to take an adversarial position. Now, wework together through mediation to seek amutually acceptable resolution. This has to beone of the biggest transformations we’vebrought about with trade unions andmanagement working in a true and meaningfulpartnership. We haven’t achieved the same levelof union buy-in for any other initiative.’



Derbyshire Constabulary seeks constructive solutionsDerbyshire Constabulary’s approach to dispute resolution focuses on understanding the underlyingissues and finding constructive solutions. Instead of investigating grievances, line managers seek tobring the parties involved together to discuss their problems and agree a mutually acceptable wayforward. Mediation and joint problem-solving are available to help resolve more intractable disputes.

In the introduction to its dispute resolutionpolicy, Derbyshire Constabulary recognises theimportance of maintaining good staff relationsand promoting fairness at work. It alsoestablishes its belief that ‘workplace disputesprovide opportunities for the organisation tolearn and improve. It is essential to the runningof an effective police service that workplacedisputes are resolved effectively, efficiently andin a timely manner.’

The constabulary has moved away from anapproach based on investigating claims towardsone of seeking to understand the differentviewpoints of the parties involved and finding amutually agreeable solution. The purpose of itspolicy is ‘to provide a channel for staff to raiseissues of concern and to access methods ofresolution that are constructive and fair’.

Informal resolutionEmployees are encouraged to raise any issuesinformally with their line manager, an HRmanager or a staff association representative inthe first instance. Informal resolutions mayinvolve a line manager meeting each partyseparately or together to discuss the matter andseek a solution. In its policy, the constabularygives the following examples of the form aresolution at this stage may take:

● Clarification of a misunderstanding

● Exchange and acceptance of differing perspectives/feelings

● Agreement to disagree

● Agreement to provide feedback to someone on their behaviour

● Acceptance of an explanation or apology

● Agreement to implement a development plan or action plan

● Agreement to modify a practice or behaviour

Raising a formal grievanceIf the issue is not dealt with successfully byinformal means, employees can raise a formalgrievance. To do so, the aggrieved person mustcomplete a dispute resolution form. This ishanded to the appropriate line manager, whocan offer assistance in filling it out. If the

complaint relates to the line manager the formshould be passed to the next manager up.

The manager involved has 21 calendar daysfrom the date the grievance is received toattempt to resolve the issue. Support and adviceis available from the local HR manager, who willalso monitor progress.

Parties meet to discuss resolutionThe manager should meet separately with theaggrieved party and any other parties involvedwithin seven days to discuss the grievance. If anyparty is absent from work, managers mayconduct home welfare visits to discuss the issue.

A meeting of all parties is then arranged. Theconstabulary recognises that this may be difficultand a number of separate meetings may berequired initially. However, it believes that ‘it isnecessary for the parties to meet in order to restorea working relationship’. At the meeting the stagemanager should review the key points and suggesta resolution, which is confirmed in writing.

Joint problem-solving and mediationIn the event that the issue remains unresolvedafter 21 days, the employee must update thedispute resolution form and send it to the localHR manager. There are two options at this stage:joint problem-solving or mediation. If the firstoption taken is unsuccessful, the other can betried – providing it can be completed within the21 days given to resolve an issue at this stage.

Joint problem-solvingJoint problem-solving is considered to be bestused when the dispute relates to proceduralissues or terms and conditions, and less effectivewhen the issue is about working relationships. Itinvolves all parties meeting to discuss the issue in

About Derbyshire Constabulary

Derbyshire Constabulary is committed to reducing and investigating crime, protecting people and promoting law and order across the county of Derbyshire. It serves a region of over 1,000 square miles, with a population approaching one million. Derbyshire encompasses the rural areas of the High Peak and Derbyshire Dales, as well as old mining communities, modern towns and business centres.

Derbyshire Constabulary


a controlled environment. The session is chairedby a trained mediator who acts as an impartialfacilitator. All those present – the disputants,staff association representatives and theimpartial facilitator – can suggest solutions.

MediationThe second option, mediation, is carried out byan employee trained and nationally accredited inmediation practice. The constabulary has aninternal pool of mediators, which includesemployees drawn from across the whole county.This helps ensure impartiality as mediators canbe selected from areas geographically remote tothe dispute. The mediators also represent adiverse cross-section of the constabulary interms of race, gender and ethnicity.

Unlike the joint problem-solving process, staffassociation representatives cannot attendmediation sessions because ‘mediation is aboutdealing directly with the parties involved so thatthey can take ownership of their own solutions’.They can, however, provide support to thoseinvolved.

The constabulary established that any issuesdisclosed during mediation should remainconfidential and cannot be used in otherproceedings, such as an employment tribunal.This is key to establishing ‘a safe environment foropen discussion and resolution of the dispute’.

Mediation can only proceed if all parties agree toparticipate. If any party does not agree, jointproblem-solving must be attempted.

Appeals panelIf mediation and joint problem-solving areunsuccessful, the issue is put before an appealspanel. This includes HR and independent staffrepresentatives. The aim of the panel is to:

● establish whether the procedure has been followed correctly, if this is disputed

● agree a framework for addressing the outstanding grievance issues between the parties

● confirm the conclusions/recommendations of the panel with each party.

The dispute resolution process at Derbyshire ConstabularyThe diagram below illustrates the grievance procedure at Derbyshire Constabulary, from informal discussions through to mediation and, if required, the final appeal.

STAGE ONERaise concern

with line manager

Parties should meet todiscuss and try to

resolve the issue – theparties have a right to

be accompaniedby a representative

The local HR manager'sguidance must be sought

STAGE TWO 'A'Joint problem-solving

Facilitated meeting of relevantparties (impartial facilitator)

Staff associations can attend

STAGE THREEAPPEAL

Panel review

Chaired by senior manager, with an independent HR

manager and relevant staff association representatives

sitting on the panel

STAGE TWO 'B'Mediation

Impartial trained mediatorassists parties in exploringthe issues and generating

solutions (withoutrepresentatives)

Staff association advice, CareFirst counselling

services and guidance fromlocal HR manager available

throughout the process

Corporate review

Monitoring by employeerelations, HR

21 days21 days21 days

Informalresolution

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