This page discusses formal procedures, including the ACAS Code and also reasonable adjustments under the Equality Act. Where one’s job is at risk, see Losing one’s job.
- There is an ACAS Code of Practice on Discipline and Grievance. Compensation may be adjusted downward or upward if an employee or employer does not comply with the Code. The aim is to encourage settlement of disputes without going to a tribunal. See below ACAS Code and Employment Act 2008.
(As well as this encouragement to follow internal resolution procedures, additional rules from May 2014 also require claims to be notified to ACAS for possible resolution before making a claim: see separate page All claims to go to ACAS.)
- The employer’s duty to make reasonable adjustments applies to grievance, disciplinary and other workplace procedures. See below Reasonable adjustments.
- The employee often has a statutory right to be accompanied by a fellow worker or trade union rep. The right to reasonable adjustments can potentially extend this to give a disabled person (eg someone who stammers) the right to be accompanied by someone else if required, such as a family member or friend. See below Right to be accompanied.
- ACAS Code of Practice on Discipline and Grievance (link to acas.org.uk),
- Discipline and grievances at work: the ACAS guide (link to acas.org.uk) – non-statutory guide
ACAS Code and Employment Act 2008
Employment Act 2008 (link to legislation.gov.uk) encourages issues to be resolved internally where possible, without recourse to tribunals. It does this by enabling compensation to be adjusted up or down if a party fails to observe an ACAS Code of Practice.
Any compensation a claimant receives may be reduced by up to 25% if he or she unreasonably fails to comply with an ACAS ‘Code of Practice: Disciplinary and Grievance Procedures’. Similarly, compensation may be increased by up to 25% if the employer unreasonably fails to comply with the Code.
From 6th May 2014, there is an additional requirement that claims be notified to ACAS before being taken to a tribunal – see All claims to go to ACAS.
The ACAS Code
For example, the Code says:
“If it is not possible to resolve a grievance informally employees should raise the matter formally and without unreasonable delay with a manager who is not the subject of the grievance. This should be done in writing and should set out the nature of the grievance.”
ACAS Code of Practice on Discipline and Grievance, para 31
ACAS has also produced a non-statutory guide – Discipline and grievances at work: the ACAS guide (link to acas.org.uk) – which supplements the Code. Tribunals are not required to pay regard to this guide (nor to the ‘Foreward’ of the Code itself), but it is expected that they will do so.
Scope of the rule on adjustment of compensation.
The rule in Employment Act 2008, allowing compensation to be adjusted up or down by up to 25% for an unreasonable breach of the Code, will not apply to all disputes.
This possibility of adjustment only applies to complaints by employees. So there can be no 25% adjustment where the complainant is a job applicant who has not been taken on by the employer, perhaps because of alleged discrimination.
Also this possibility of adjustment applies only if the person is an employee in the legal sense. This means there will be no 25% adjustment where, for example, the case is brought by a self-employed person falling within the Equality Act (see Different types of worker).
Further, the rule allowing for the adjustment only applies where the matter is one to which the Code applies. Tribunal decisions may be needed to determine just what matters the Code applies to. The Code (at para 1) says about its scope:
“This Code is designed to help employers, employees and their representatives deal with disciplinary and grievance situations in the workplace.
– Disciplinary situations include misconduct and/or poor performance. If employers have a separate capability procedure they may prefer to address performance issues under this procedure. If so, however, the basic principles of fairness set out in this Code should still be followed, albeit that they may need to be adapted.
– Grievances are concerns, problems or complaints that employees raise
with their employers.
The Code does not apply to redundancy dismissals or the non renewal of fixed term contracts on their expiry.”
ACAS Code of Practice on Discipline and Grievance, paragraph 1.
Reasonable adjustments to hearings etc
Under the reasonable adjustment duty, appropriate reasonable adjustments should be made to ensure an employee who stammers can have their say. This can include a Right to be accompanied as discussed in the next heading, but it is not limited to that.
Broadly, where the employee who stammers is put at a disadvantage – eg because of difficulty in presenting his or her arguments orally – the employer should take reasonable steps to avoid or mitigate the disadvantage. Ideas discussed for interviews (oral, written or using technology) under Examples of reasonable adjustments: Recruitment may be useful.
It would make sense for the person who stammers to request adjustments he or she wants (though the reasonable adjustment duty is not necessarily dependent on this).
“Modifying disciplinary or grievance procedures for a disabled worker” is an example of a possible reasonable adjustment in para 6.33 of the Employment Code, and the Code gives examples.
Note that Equality Act protection, including the duty to make reasonable adjustments, continues even after the employment has terminated. See Former employees/ workers.
Right to be accompanied
Apart from equality law
Fellow worker or trade union rep
In many situations a worker has a legal right in any event to be accompanied by a fellow worker, trade union official, or workplace trade union representative. See:
- pages 23 and 47 of Discipline and grievances at work: the ACAS guide (link to acas.org.uk);
- Do workers have the right to be accompanied at a grievance hearing? (link to xperthr);
- The ‘right to be accompanied’ hits the headlines (link to lindermyers.co.uk), 2009.
There are also very limited circumstances in which a worker has a legal right to be represented by a lawyer in an employment disciplinary hearing – under European Human Rights Convention Article 6. See eg.
- Legal representation: Kulkarni v Milton Keynes Hospital NHS Foundation Trust (link to personneltoday.com),
- Human rights in some but not all disciplinary hearings at work, rules Supreme Court (link to ukhumanrightsblog.com),
- Mattu v Coventry & Warwickshire NHS (link to bailii.org).
Equality Act 2010 – being accompanied by friend or family member
The duty to make reasonable adjustments (see above) – and perhaps other Equality Act claims – can require employers to make adjustments above and beyond such rights. The Employment Code gives an example relevant for stammering:
A worker with a learning disability is allowed to take a friend (who does not work with her) to act as an advocate at a meeting with her employer about a grievance. The employer also ensures that the meeting is conducted in a way that does not disadvantage or patronise the disabled worker.
Employment Code, para 6.33:
So a person who stammers might, for example, might be allowed to bring a friend or family member into an internal hearing where normally only a fellow staff member or trade union rep would be allowed. The issue may arise of whether a fellow employee or trade union rep could reasonably fulfill the same function as a family member. However, for example the person who stammers might find it easier to speak to, or in the presence of, a family member.
Crisp v Iceland Frozen Foods Ltd  EqLR 618, Employment Tribunal.
The claimant had depression which could manifest as panic attacks. She asked that her husband be allowed to accompany her at a disciplinary hearing regarding sickness absence, to help if she had a panic attack. The employer refused, saying its policy was to allow only a colleague or union representative to attend. The tribunal held that in the absence of a particular employee or union representative with the knowledge of how to provide the claimant with appropriate support before or during a panic attack, the employer’s policy put her at a disadvantage in comparison with someone who did not have her disability. The adjustment of allowing a family member to attend was reasonable in that a family member could be expected to provide appropriate support and would cause no particular problem for the employer other than a departure from its policy. Accordingly, there was a breach of the duty to make reasonable adjustments.
Tribunal issues a recommendation against Iceland Frozen Foods (link to didlaw.com), 14/6/12.