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benchmarking HR policy and practice
Discipline, grievance and mediation
IDS HR Study 906 • November 2009

Page 2 Overview
3 The new Acas Code of Practice
A 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 procedures
Scope and purpose; an informal approach; the formal process; examples of minor faults,
misconduct and gross misconduct

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

26 Resolving disputes using mediation

What 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 studies
East Sussex County Council introduces mediation
Derbyshire Constabulary seeks constructive solutions

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 overview

You say you want a resolution

Employers put formal procedures in place to ensure that disciplinary issues and grievances are dealt
with in a consistent and fair manner. But, wherever possible, organisations try to arrive at an
informal resolution before going down a formal route that can prove costly and upsetting for all
involved – and which can ultimately lead to an employment tribunal. A growing number of
employers are now also using a mediated approach to dispute resolution – one that is conciliatory
rather than adversarial.

Repeal of the SDRPs impact when it comes to the content of

The statutory dispute resolution procedures
(SDRPs) were repealed on 6 April 2009 – just
four and a half years after their introduction.
The Government-commissioned review carried
out by Michael Gibbons1 found that the
procedures had contributed to an increase in the
number of disputes. ‘Rather than encouraging early
resolution,’ said Gibbons, ‘the procedures have led
to the use of formal processes to deal with problems
which could have been resolved informally.’
‘Inflexible, prescriptive regulation has been
unsuccessful,’ concluded Gibbons. ‘Measures to
be used in future should be much simpler and
more flexible.’
New Acas Code of Practice
The repeal of the SDRPs has led to a revision of
the Acas Code of Practice on disciplinary and
grievance procedures. The new regime is
designed to provide the greater flexibility called
for by Gibbons and to allow for a common-sense
approach that was absent under the old system.
Employers should no longer face findings of
automatically unfair dismissal for procedural
failings, although it is unlikely we have seen the
end of legal arguments in this area.
To a certain extent, we have returned to the
situation pre-2004. As before, failure by an
employer or employee to follow the new Acas
Code when handling workplace disputes will be
taken into account by an employment tribunal.
But the Code does now carry greater clout, as it
gives an employment tribunal the power to
adjust any award of compensation by up to 25
per cent if it finds the employee or employer has
unreasonably failed to follow its directions.
Company practice
The repeal of the SDRPs and introduction of the
revised Acas Code appear to have had little
1 Better dispute resolution: a review of employment
dispute resolution in Great Britain. Michael Gibbons,
March 2007
employers’ disciplinary and grievance procedures.
In the course of our research, we examined the
disciplinary and grievance policies of 29 UK
employers. While the majority have reviewed
their procedures in light of the new Code – or
were in the process of doing so – none have felt it
necessary to make substantive changes.
Informal resolution favoured
It is important that employers document their
formal disciplinary and grievance procedures to
help ensure that all cases are dealt with fairly and
consistently. Moreover, disciplinary policies
establish what behaviour is considered
unacceptable in the workplace and the possible
sanctions – ultimately, employees can be
dismissed if their conduct fails to improve.
However, most organisations place an emphasis
on trying to reach an informal resolution to any
workplace disputes wherever possible. Line
managers are usually expected to address any
issues in their teams as and when they occur. In
this way, problems can be tackled before they
escalate and before the team is adversely affected
by the intrusions of a formal investigation.
Dealing with issues informally within the
workplace is widely accepted as the best approach
and should provide the most positive outcome.
Mediation
Where issues cannot be tackled informally by
line managers, mediation can prove an effective
means of achieving a resolution. Unlike formal
procedures that result in a judgment as to who is
‘right’ and ‘wrong’, mediation seeks to address
the underlying issues and rebuild working
relationships. But it should only be used as part
of a holistic approach to conflict management. It
should not be offered as an easy ‘out’ for line
managers faced with difficult conversations.
And employers may feel that sometimes
conciliation is not possible, or even desired, and
that formal action is required.

2 IDS HR Study 906 • November 2009


The new Acas Code of Practice
A revised Acas Code of Practice on disciplinary and grievance procedures came into effect on 6 April
2009. A breach of the Code does not in itself precipitate legal proceedings, but a failure to abide by
its provisions will be taken into account by a tribunal as evidence when considering a relevant claim.
Ability to adjust tribunal awards
Employment tribunal panels now have the
discretion to adjust the awards made to either
party by up to 25 per cent if an employee or
employer has ‘unreasonably’ failed to comply
with the Acas Code of Practice on disciplinary and
grievance procedures. The panel may increase an
award by up to 25 per cent if it feels an employer
has unreasonably failed to follow the guidance set
out in the Code. Or, if it feels an employee has
unreasonably failed to follow the Code, it can
reduce any award by up to 25 per cent.
Streamlined Code
The new Acas Code is just 11 pages long. It
begins with a foreword, which does not form
part of the statutory Code itself – tribunals are
not required to take it into account when
determining a case. Following on from the
foreword, the introduction to the Code provides
definitions of disciplinary situations and
grievances, and establishes some key principles
for designing formal procedures. This is followed
by sections on how to handle disciplinary issues
and grievances in the workplace.
Informal action preferred
The non-statutory foreword to the Code
contains a number of aspirations. It states that
‘employers and employees should always seek to
resolve disciplinary and grievance issues in the
workplace’. It also suggests that many potential
disciplinary or grievance issues can be resolved
informally: ‘A quiet word is often all that is
required to resolve an issue.’ Where formal
action is necessary, the Code sets out the ‘basic
requirements of fairness’ and is ‘intended to
provide the standard of reasonable behaviour in
most instances’.
Aims
Acas states that the Code is designed to help
employers, employees and their representatives
deal with disciplinary and grievance situations in
the workplace. It does not apply to redundancy
dismissals or the non-renewal of fixed-term
contracts on their expiry.
IDS HR Study 906 • November 2009
analysis
Developing procedures
Acas explains why employers should develop
formal procedures for handling disciplinary and
grievance procedures. It says that ‘fairness and
transparency are promoted by developing and
using rules and procedures for handling
disciplinary and grievance situations’ and that
these rules ‘should be set down in writing, be
specific and clear’. Notably, the Code states that
‘employees and, where appropriate, their
representatives should be involved in the
development of rules and procedures’.
Dealing with issues fairly
The introduction to the Code establishes some
guiding principles for dealing with disciplinary
and 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 accompanied
Acas reminds employers that workers have a
statutory right to be accompanied by a fellow
worker or trade union official where they are
required or invited by their employer to attend
certain disciplinary or grievance meetings. They
must make a reasonable request to their
employer to be accompanied.
For the purposes of this right, disciplinary
hearings are defined as meetings that could
3
Discipline, grievance and mediation
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 cases
The 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.
Grievances
The 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.
result in: a formal warning being issued to a
worker; the taking of some other disciplinary
action, such as suspension without pay,
demotion or dismissal; and the confirmation of
a warning or some other disciplinary action,
such as an appeal. A grievance hearing is defined
as any hearing that concerns the performance of
a duty by an employer in relation to a worker.
Informal discussions or counselling sessions do
not attract the right to be accompanied unless
they could result in formal warnings or other
actions.
Handling disciplinary issues
Five pages of the Code are set aside to explain
how 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
4 IDS HR Study 906 • November 2009
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

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.
IDS HR Study 906 • November 2009
Analysis
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.
5
Discipline, grievance and mediation
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
6 IDS HR Study 906 • November 2009
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.

Disciplinary action against a trade union rep
The Code states that the normal disciplinary
procedure should be followed when action is being
considered against a trade union representative.
However, it suggests that it is advisable to discuss
the matter at an early stage with a union official –
with the employee’s agreement.
Criminal offences
Being charged or convicted of a criminal offence
is not usually in itself reason for disciplinary
action. Acas says employers should consider
what effect the charge or conviction has on the
employee’s suitability to do his or her job.
Handling grievances
The Code’s principles for handling grievances
are, 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
IDS HR Study 906 • November 2009
Analysis
● Workers have a statutory right to be
accompanied
● Communicate the outcome of the appeal
without unreasonable delay
Where disciplinary and grievance cases overlap
The Code states that ‘where an employee raises
a grievance during a disciplinary process, the
disciplinary process may be temporarily
suspended in order to deal with a grievance’. If
the cases are related they may be dealt with
concurrently.
Collective grievances
The Code does not apply to grievances raised on
behalf of two or more employees by a trade
union representative or other appropriate
workplace representative.
Workplace mediation
The use of an independent third-party mediator
to help resolve a workplace dispute has not been
built into the Code itself. Instead, the possible
use of this type of alternative dispute resolution
is highlighted in the foreword. Acas suggests that
where issues cannot be resolved in the workplace
‘employers and employees should consider using
an independent third party’, which could be an
internal or external mediator.
Acas Guide
Acas has produced a more detailed non-
statutory guide to discipline and grievances at
work to accompany the Code of Practice. The
Guide contains a number of sample disciplinary
and grievance procedures. Tribunals are not
obliged to take the Guide into account when
reaching 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.
7
Discipline, grievance and mediation

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

Scope and purpose For persistent or serious breaches, however,

Many organisations begin their disciplinary
policies by setting out their scope and purpose.
This tends to involve explaining the key
principles behind an organisation’s approach to
tackling misconduct. Employers may also
establish who is covered, what types of
behaviour are considered misconduct or gross
misconduct, and the responsibilities of the key
stakeholders in the process.
Disciplinary policies typically aim to be
corrective, not punitive. Organisations believe
they should encourage good performance and
discourage breaches of workplace rules. Boots,
for example, establishes that the aim of its
disciplinary procedure is ‘to help you to achieve
and maintain our high standards of conduct. If
your conduct falls below acceptable standards,
the procedure is designed to help managers
motivate and encourage you to put things
right.’
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.
disciplinary policies allow for severe action to be
taken – ultimately, an employee may be dismissed.
Establishing principles
In their disciplinary procedures, organisations
typically 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 covered
Some employers make it clear at the beginning of
their policy who is covered by the disciplinary
procedures. In general they apply to all
employees at an organisation, although they
may not cover employees serving a probationary
period.
Some of the organisations that sent us their
policies to review have different policies in place
for different groups of staff. This is common
where two companies have merged or where
some employees have terms and conditions
negotiated by a recognised trade union and
others do not. However, organisations usually
seek to harmonise their HR policies for different
groups of staff as far as possible.

8 IDS HR Study 906 • November 2009

 Analysis

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.

Status of policy be deemed reasonable to avoid falling foul of an

Disciplinary policies may be part of employees’
contracts – subject to their agreement – or free-
standing, with no contractual basis. A number of
the procedures we reviewed included the
statement that ‘this policy is non-contractual’.
The main advantage of this approach is that it
gives the employer flexibility to depart from the
policy if it so chooses – although if this results in
non-compliance with the Acas Code of Practice
on disciplinary and grievance procedures it must
employment tribunal.
Heavily unionised organisations may agree their
disciplinary policy with the relevant trade union
and incorporate it into a collective agreement.
This is not legally enforceable by either party –
but it can give rise to contractual obligations.
What is covered
Organisations may consider taking disciplinary
action when there are concerns, or allegations

IDS HR Study 906 • November 2009 9

Discipline, grievance and mediation

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

Issue arises

Misconduct Gross misconduct

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

Investigation if appropriate Formal meeting

Give reasonable notice

No disciplinary action Decision

* First written * Final written

* Dismissal
warning warning

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

Resolution
Employee 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 Appeal

correct upheld

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

10 IDS HR Study 906 • November 2009


have been made, about an employee’s conduct.
These range from minor issues, such as
persistent time-wasting, to more serious
offences, such as violence. Organisations may
have separate policies in place to deal with
capability issues, poor attendance,
whistleblowing, discrimination, harassment and
bullying.
Defining misconduct
Most of the procedures we examined give
examples of the types of offences for which
disciplinary action can be invoked. They
typically split offences into two categories:
misconduct that is likely to lead to formal
disciplinary action being started; and more
serious gross misconduct for which immediate
action will be taken.
Some employers also provide examples of minor
faults, which tend to be dealt with informally.
Organisations generally include a statement
making it clear that the examples of misconduct
and gross misconduct they provide are not
exhaustive. The box on page 9 lists some of the
example offences that are commonly listed in
disciplinary procedures.
Capability issues
Poor performance is a grey area. It is often
difficult to tell if underperformance is due to a
lack of ability or a lack of effort. In the first
instance, most organisations seek to address
such issues through their standard performance
management arrangements. This usually
involves agreeing performance targets and
reviewing progress on a more regular basis.
Employees may be offered some form of
coaching, training or counselling to give them an
opportunity to improve.
If poor performance continues, organisations
may turn to their formal capability procedures.
In general, these are used where sub-standard
performance is due to a lack of appropriate skills
or a medical complaint.
If an employee possesses the ability to do the job
but chooses not to, the issue becomes one of
misconduct. It is then dealt with under the
disciplinary procedure.
Barclays recognises that conduct and capability
issues can occasionally overlap. It suggests that if
managers have any doubts they should contact
HR. The bank also provides the following
guidance to help line managers determine
IDS HR Study 906 • November 2009
Analysis
whether they should instigate the formal
capability 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 attendance
Specific absence policies are generally used to
deal with absence issues. But disciplinary
procedures may be applied when absence is
discovered to be wanton.
Criminal offences
Employees charged with a criminal offence do
not necessarily face disciplinary action, provided
the offence is not work-related. Moreover,
conviction for a criminal offence should not
result automatically in an employee’s dismissal,
although imprisonment will usually lead to
dismissal because the employee will be unable to
fulfil his or her contract.
Acas has produced a non-statutory guide to
discipline and grievances at work to accompany
its Code of Practice. According to the Guide:
‘The question to be asked in such cases is
whether the employee’s conduct or conviction
merits action because of its employment
implications.’ Acas suggests that the following
guidance should be borne in mind if an employer
thinks such conduct warrants disciplinary
action:
● 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.
11
Discipline, grievance and mediation
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’ responsibilities
Employees’ 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 managers
Line 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 HR
The 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.
● 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 discipline
Some organisation’s policies establish the
responsibilities of employees, line managers and
HR in the disciplinary process (see the box
above). Line managers often have the largest role
– they are usually expected to deal with
misconduct as soon as it arises, carry out
investigations where necessary and chair
disciplinary hearings.
12
Training line managers
It is all very well having a comprehensive policy
in place to deal with discipline, but it will only be
effective if line managers understand and follow
it. Giving line managers training in conflict
management can help ensure they are well
placed to tackle disciplinary issues at an early
stage before they escalate into a more serious
problem. At Barclays, managers must have
completed and passed the accredited Discipline,
Capability and Grievance training before they
can manage the disciplinary, capability and
grievance procedures.
An informal approach
Most organisations encourage line managers to
pursue informal approaches when dealing with
disciplinary issues before invoking formal
procedures, and include a statement to this effect
in their policies. According to Acas, in the
foreword to its Code of Practice: ‘Many
potential disciplinary or grievance issues can be
resolved informally. A quiet word is often all
that is required to resolve an issue.’
Tackling minor issues informally can prove more
constructive in the long run, avoiding the upset
a formal investigation can cause across a team or
department. But the success of such an approach
is reliant on organisations having effective
people management processes in place and line
managers who apply them appropriately.
Provide constructive criticism
The Acas Guide suggests that line managers
should seek an informal resolution by speaking
to the employee in question in private. It says
‘criticism should be constructive, with the
emphasis being on finding ways for the
employee to improve and for the improvement
to be sustained’. Acas also suggests employers
should listen to what the employee has to say
about the issue.
Be clear about the issue
If an employee is going to improve, it is
important he or she is clear about what the issue
is and what needs to be done. In its disciplinary
policy, Choice Support Group notes that: ‘To be
effective, informal counselling should make it
clear to the employee what conduct is
unacceptable or where their performance is
below the standard required.’
IDS HR Study 906 • November 2009

Prevent the meeting becoming formal
Line managers need to take care that their efforts
to seek an informal resolution do not
inadvertently turn into formal action. According
to the Acas Guide: ‘This may unintentionally
deny employees certain rights, such as the right
to be accompanied.’ Acas advises that if it
becomes obvious that the matter may be more
serious the meeting should be adjourned and the
employee should be informed that the formal
procedure will now be followed.
Consider mediation
A few employers signpost in their policies that it
may be appropriate to consider mediation before
the formal procedure kicks into action.
Mediation involves an independent third-party
helping two or more people in a dispute reach an
agreement. We look at mediation in greater
detail on page 26.
The formal process
Where an informal approach has failed, or an
employee’s misconduct is more serious, employers
may invoke their formal disciplinary procedure.
The first step is to carry out an investigation into
the alleged misconduct, during which the
employee may be suspended on full pay.
Employees should then be invited to a disciplinary
hearing, where a decision is made as to whether
any sanction should be imposed. Employees are
usually given just one chance to appeal.
Conducting an investigation
Before any disciplinary action is taken,
employers should first carry out a detailed
investigation to establish the facts. Employees
should be informed promptly that a complaint
made against them is being investigated. The
Acas Code states that: ‘It is important to carry
out necessary investigations of potential
disciplinary matters without unreasonable
delay.’ Few of the policies we examined
prescribed fixed time limits for conducting
investigations, although one stated that they
should be completed within 30 days. However, in
practice investigations can drag on as employees
may be unavailable on long-term sick leave.
Line managers investigate
The direct line manager of an employee facing
possible disciplinary action often carries out the
investigation. However, in some situations an
independent investigating officer is appointed –
particularly if there is a conflict of interest.
IDS HR Study 906 • November 2009
Analysis
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.
Establishing the facts
The purpose of an investigation into an
allegation of misconduct is to establish all the
facts, not to build a case against the employee.
The manager carrying out the investigation
should be looking for evidence that both
supports and refutes the allegations.
In gathering all the relevant facts, line managers
may 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
13
Discipline, grievance and mediation
● physical evidence, such as damaged property
● medical evidence in cases of violence.
One employer’s policy we examined said that the
investigation may involve a search of the
employee’s locker.
Investigatory meetings
To gather all the facts of a case, line managers
may hold an investigatory meeting – although
this may not be considered necessary. The Acas
Guide suggests that employees should be given
advance warning and time to prepare if a
meeting is held.
Barclays sets out the following guidelines on
how 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 be
accompanied at an investigatory meeting and
some companies spell this out in their policies.
However, many employers allow employees to
be accompanied at all stages of the disciplinary
process. The Acas Code states that: ‘If there is an
investigatory meeting this should not in itself
result in any disciplinary action.’ Its Guide notes
that: ‘If it becomes apparent that formal action
may be needed then this should be dealt with at
a formal meeting at which the employee will
have the statutory right to be accompanied.’
Precautionary suspension
Disciplinary procedures generally allow for the
suspension of employees on full pay while
investigations are carried out. In line with the
Acas Code, all the policies we examined made it
clear that suspension on pay is always a
precautionary measure and not regarded as a
disciplinary action. The Acas Guide suggests
14
that suspension may be necessary ‘where
relationships have broken down, in gross
misconduct cases or where there are risks to an
employee’s or the company’s property, or
responsibilities to other parties’.
Suspending with pay
Employees’ pay while on suspension is likely to
include any regular payments, such as a shift
premium. However, it may exclude occasional
payments, such as overtime.
A temporary measure
Suspension during an investigation should be for
as short a period as possible and should be kept
under review. Company practice varies
considerably. One organisation’s disciplinary
policy stated that suspension is normally for a
maximum of two days. At another, employees
suspected of gross misconduct are suspended for
no more than five days while investigations are
carried out. One company allowed employees to
appeal if suspension was for longer than three
weeks and they were not notified of a proposal
to dismiss.
Remaining available during suspension
Choice Support Group notes in its disciplinary
policy that: ‘It is a condition of suspension that
the employee is available during normal hours to
attend any meetings deemed necessary and does
not unreasonably delay any disciplinary
proceedings without adequate and acceptable
reasons (eg through failure to attend a
disciplinary meeting).’
Gardening leave
At Choice Support Group employees may be
placed on additional paid leave – ‘gardening
leave’ – if a serious disciplinary allegation is
made. In this instance, employees are removed
from their place of work immediately. Leave of
absence is typically limited to around 48 hours,
pending the outcome of an initial investigation
to determine whether the allegations have
sufficient substance to justify suspension.
Inviting employees to a hearing
If, once the investigation has been completed,
disciplinary action is considered necessary, the
employer should inform the employee in writing
of the charge(s) against him or her and the
possible consequences of the disciplinary action.
This should contain enough information to
enable him or her to prepare an answer to the
case. The Acas Code states that: ‘It would
normally be appropriate to provide copies of any
IDS HR Study 906 • November 2009

written evidence, which may include witness
statements.’ The notification should also give
details of the time and venue of the disciplinary
hearing and advise the employee of his or her
right to be accompanied by a colleague or trade
union representative.
Dewhurst notes that the letter sent to employees
notifying them of a disciplinary hearing should
cover 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 hearing
The Acas Code states that: ‘The meeting should
be held without unreasonable delay whilst
allowing the employee reasonable time to
prepare their case.’ In practice, what employers
interpret as ‘reasonable’ varies. The notice
employers give to employees to prepare for a
disciplinary hearing ranges from a minimum of
two days to a maximum of ten days. Most
organisations, however, do not specify a set
notice period and many mirror the Acas Code in
promising reasonable notice.
Rescheduling meetings
The Acas Code establishes that ‘employers and
employees (and their companions) should make
every effort to attend the meeting’. However,
employers generally allow for meetings to be
rescheduled if the employee concerned provides
a good reason, or if the employee’s companion
cannot attend the scheduled meeting. Employers
who cover this point in their procedures
typically allow the hearing to be postponed for
not more than five working days (as suggested
by the Acas Guide).
Failure to attend
If an employee is repeatedly unable or unwilling
to attend a meeting, employers may make a
decision in his or her absence. According to the
Acas Guide there are a number of considerations
employers need to take into account before
coming to this conclusion. These include: the
seriousness of the disciplinary issue; the
employee’s disciplinary record; medical opinion
IDS HR Study 906 • November 2009
Analysis
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.
on the employee’s fitness to attend; and how
similar cases have been handled in the past.
Conducting the meeting
Choosing a suitable venue
Some employers provide guidance on choosing a
suitable venue for the disciplinary meeting. The
Acas Guide suggests a room where there will be
no interruptions. It is particularly important to
take into account any physical disability of the
employee or his or her companion. Barclays
notes that: ‘When making arrangements for
formal disciplinary, capability or grievance
meetings it is important to identify whether the
employee has any specific requirements that
would require a reasonable adjustment to be
made to enable them to participate fully in
proceedings.’ Employers may also need to
consider providing an interpreter.
The right to be accompanied
Employees have a right to be accompanied by a
colleague or trade union official at disciplinary
hearings. Companions have a role in meetings
that extends beyond simply offering support.
They can address disciplinary meetings, put the
employee’s case and respond on the employee’s
behalf to any views expressed during the
15
Discipline, grievance and mediation
meeting. But they cannot answer questions on
the worker’s behalf, address the hearing if the
worker does not wish it or prevent the employer
from explaining its case.
Organisations tend to allow paid time off to
companions, both to familiarise themselves with
the case and to attend meetings.
The disciplinary panel
The disciplinary hearing is typically conducted
by an appropriate line manager. In instances
where a manager is charged with misconduct,
the hearing is usually chaired by a more senior
manager. The Acas Code notes that: ‘In
misconduct cases, where practicable, different
people should carry out the investigation and
disciplinary hearings.’
The panel may also include a representative
from the HR department to advise on correct
procedure. Another employee may sit in on
hearings to take notes.
Calling witnesses
Witnesses can be called to disciplinary hearings
by either the employee or management, provided
their testimony is judged to be pertinent to the
issue under consideration. In its disciplinary
policy, Oxfam GB states that: ‘Witnesses should
not be called to attest to the character of another
employee but to help establish facts not
previously established.’ Oxfam also notes that ‘if
the cost of bringing witnesses to the meeting is
excessive due to the distance involved, telephone
conferencing facilities could be considered’.
Order of business
The following is typical of the suggested
structure 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
16
● 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 particular
issues at any point during this process. The
manager or employee/representative may seek
an adjournment of the hearing if either side feels
further investigation of the issues is necessary.
Communicating the decision
The Acas Guide suggests that employers should
adjourn the meeting before making a decision
on disciplinary action to allow time for
reflection. Some disciplinary policies state that
the employee should be informed of the
decision verbally straight after the meeting or at
least on the same day. Confirmation in writing
usually follows no more than five days later. If
the decision goes against the employee, the
employer has to notify him or her of the right
to appeal.
Disciplinary sanctions
A number of factors are taken into account in
arriving at what is considered the most
appropriate sanction against an employee who
has been found guilty of misconduct. These
include: the type and seriousness of the offence;
precedent; the employee’s record and position in
the company; length of service; and any ‘special
mitigating circumstances’. When reaching a
decision on what disciplinary action should be
taken, Choice Support states that: ‘The chair
should take account of the employee’s
disciplinary and general record, length of
service, actions taken in similar cases and the
explanations given by the employee.’
Verbal warnings
First and minor offences tend to be dealt with by
line managers and result in an informal warning.
Although such warnings are put on an employee’s
personal record, they are not necessarily part of
the formal disciplinary process.
However, while the warnings are considered
informal, this does not mean that no action is
taken. Employees may, for example, be offered
coaching or training to improve their
IDS HR Study 906 • November 2009

Case law: disciplinary procedures and unfair dismissal
Disciplinary hearing in an employee’s absence
An 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 misconduct
When 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
performance. And employees are made aware that
any further misconduct will almost certainly lead
to formal disciplinary procedures being invoked.
Issuing written warnings
If an employee’s conduct fails to improve – or if
an offence is serious enough in its own right to
justify tougher action – organisations typically
issue a formal warning in writing. This may be
followed by a final written warning if there is no
improvement – although employers reserve the
IDS HR Study 906 • November 2009
Analysis
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 dismissals
Employers 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.
right to instigate action at whatever level they
think appropriate.
Written warnings should set out the nature of
the misconduct and the change in behaviour
required. They also tend to state that any further
misconduct will automatically lead to more
serious disciplinary measures being taken.
Allianz states that verbal and written warnings
should establish:
● the reason for the warning
17
Discipline, grievance and mediation
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 funds
On 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.
● 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 warnings
Most employers stipulate a period of time during
which disciplinary warnings remain valid. In
general, the more severe the warning, the longer
it remains live.
At most of the organisations we contacted that
set limits, first written warnings expire after six
months, while final written warnings last 12
months. There is some variance, however, and
first warnings may last up to 12 months and
final warnings as long as 24 months. A few
18
employers operate three levels of written
warning, with the second warning lasting 12
months. Two of the policies we examined
stipulated a valid period for verbal warnings –
four months at one and six at the other.
Some warnings are never considered to have
fully expired and may be taken into
consideration at a later stage of the disciplinary
process if they are judged relevant to the case.
Dismissal
Receiving a final written warning puts the
employee in the ‘last chance saloon’. If
performance and conduct fail to improve,
organisations reserve the right to dismiss the
employee, but usually with notice. In cases of gross
misconduct, organisations have the power to
dismiss an employee immediately, without notice.
Alternatives to dismissal
Employers may decide that a sanction other than
dismissal is more appropriate. At Hitachi, the
following sanctions may be imposed if considered
appropriate as an alternative to dismissal:
● unpaid suspension
● demotion/disciplinary transfer
● loss of bonus
● loss of benefits.
Taking action against union representatives
Taking disciplinary action against a trade union
representative requires diplomacy. The Acas
Code says that the normal procedure should be
followed but advises discussing the matter at an
early stage with an official of the union, with the
employee’s agreement.
Derbyshire Constabulary notes that disciplinary
action against a trade union official can lead to
a serious dispute if it is seen as an attack on the
union’s function. Its policy states that: ‘Although
normal disciplinary standards should apply to
their conduct as employees, no disciplinary
action beyond a verbal warning should be taken
until the circumstances of the case have been
discussed with a senior trade union
representative or full-time official.’
Suspending disciplinary action
It is not unknown for employees who are subject
to a disciplinary process to raise a grievance
against a fellow employee or manager. In this
case, a decision has to be made on whether to
suspend the disciplinary process itself while the
grievance is dealt with.
IDS HR Study 906 • November 2009

Appeals
The vast majority of the disciplinary procedures
we reviewed give employees just one
opportunity to appeal. The decision of the
appeals panel is final.
Grounds of appeal
The Acas Code states that employees should
appeal in writing if they feel disciplinary action
taken against them is wrong or unjust. Some
employers seek to clarify the grounds on which
an employee can appeal – for example, because
new evidence has come to light or the employee
thinks the process followed was not fair.
Time limits on appeals
Most organisations set a time limit for appeals to
be made after a disciplinary panel has issued its
decision – the most popular being five days,
although seven- and ten-day limits are also
common. Generally, an appeal does not delay
the implementation of the decision of the
disciplinary hearing. Of course, if an appeal is
successful, a penalty may be reduced in its
severity or even reversed.
To end any uncertainty over a disciplinary issue,
organisations are usually keen to carry out
appeals promptly. Most disciplinary policies
state that ‘appeals will be dealt with as quickly
as possible’, but some of those we reviewed give
a specific period within which the hearing must
take place. In this case, the time limit is usually
framed in terms of the number of days following
the lodging of the appeal. This ranges from two
working days to four working weeks, but is
more typically one week. Those who set a time
limit often leave themselves scope to hold an
IDS HR Study 906 • November 2009
Analysis
appeal later, promising to inform the employee if
this is necessary and why.
Hearing an employee’s appeal
Acas recommends that, wherever possible, the
appeal hearing is dealt with by a manager not
involved with the earlier disciplinary hearing.
Appeals are usually heard by a more senior
manager. However, there are no hard and fast
rules. If the most senior manager at an
organisation attended the first hearing, that
manager might also hear the appeal.
Alternatively, a more junior manager could take
their place. Appeals panels may be larger and
comprise more senior managers when dealing
with more serious disciplinary issues or where a
senior member of staff is involved.
As at disciplinary meetings, employees have a
right to be accompanied at appeal hearings.
Options after appeal
After hearing the appeal, the manager – who is
often accompanied by a representative from the
HR 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 not
result in any increase in penalty as this may deter
individuals from appealing’.
Once a decision is made, a letter setting out and
explaining the reasoning behind it must be given
to the employee who lodged the appeal.
19
Discipline, grievance and mediation
Grievance procedures
Employers have made few changes to their grievance procedures following the repeal of the
statutory dispute resolution procedures. Most continue to follow Acas guidance closely. Grievance
procedures tend to be more concise than disciplinary policies, and establish a process based on three
basic steps: submitting a written grievance; holding a meeting before reaching a decision; and
allowing employees to raise an appeal. Our research is based on an analysis of the grievance
procedures from 29 employers.
What is a grievance?
The revised Acas Code of Practice for
disciplinary and grievance procedures provides a
broad definition of what constitutes a grievance.
It states that:
‘Grievances are concerns, problems or
complaints that employees raise with their
employees.’
Issues that may cause a grievance
The non-statutory Acas Guide to discipline and
grievances at work identifies a number of issues
that 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 Group
identifies some of the issues that may cause
grievances as: terms and conditions of
employment; health and safety; work relations;
new working practices; working environment;
organisational change; and equal
opportunities. Barclays, meanwhile, states that:
‘A grievance situation can arise where an
employee has a complaint or problem about
any issue relating to their work, working
environment, pay and benefits, working hours
or is concerned about any other issue affecting
their employment.’
Separate policies
Many organisations consider bullying and
harassment to be a particularly sensitive issue
and, therefore, handle these grievances under a
separate policy. Employers also often have
separate guidelines for cases of whistleblowing.
20
Aggrieved about a disciplinary
An employee may seek to raise a grievance about
an employer taking disciplinary action. In this
instance, most organisations require the
complaint to be dealt with as an appeal under
the disciplinary procedure – rather than as a
separate grievance (although there may be
limited circumstances where the grievance
procedure is applied).
At Choice Support Group, for example,
grievances related to disciplinary action are
normally dealt with through the appeals
procedure. However, the organisation’s
grievance policy sets out the following two
instances where a grievance concerning a
disciplinary 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 resolution
Employers typically encourage staff to attempt
to resolve issues informally with their line
manager before lodging a formal grievance. One
employer notes in its grievance procedures that
its ‘policy is to encourage free communication
between employees and their managers’.
Although most employers do not apply a time
limit for the informal stage, one notes that if an
issue remains unresolved after two days a formal
grievance should be made in writing.
Achieving an informal resolution avoids the
time, effort and possible upset involved in a
formal process. Creating a culture of open and
honest feedback should allow the majority of
issues to be dealt with as part of the normal day-
to-day conversations between employees and
their line managers.
Where informal attempts at a resolution fail,
organisations may encourage employees to
IDS HR Study 906 • November 2009

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.
consider mediation before going down the
formal route (see the box above).
The formal procedure
Most of the 29 grievance procedures we
examined 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 grievance
Formal grievances should be raised in writing
and, according to the Acas Code, without
‘unreasonable delay’. They are typically
submitted to an employee’s immediate line
manager. Of course, there are exceptions. For
instance, if the grievance mentions the line
manager it may be escalated to a more senior
manager. In addition, if the nature of the
grievance is considered too personal it may be
more appropriate to refer the grievance to HR.
What to include in the grievance letter
Employees are typically expected to set out in
reasonable detail the circumstances about which
they are aggrieved. But setting out a grievance in
writing is not easy. In its grievance procedures,
IDS HR Study 906 • November 2009
Analysis
Allianz states that: ‘If the employee’s first
language is not English, or they have difficulty in
expressing themselves on paper, they should be
encouraged to seek help from a work colleague
or union representative.’
Some organisations set out exactly what should
be included in the written grievance and/or
provide a template letter. Employees are
typically 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 grievance
While organisations may encourage staff to air
their grievances as they arise so that timely
resolutions can be achieved, for various reasons
employees might submit a grievance some time
after the event. Some organisations seek to deter
this by placing time limits on how long an
employee can wait before making a formal
approach. The length of time employees are
given to raise a complaint varies, but they may
be given up to three months if an informal
resolution has been attempted.
Investigating a grievance
Before the first formal meeting, managers may
wish to seek feedback from other parties.
Investigations are often carried out by an
employee’s direct line manager, but where the
grievance is in relation to that manager or is
particularly sensitive for other reasons, an
impartial manager or member of HR may be
involved. In particularly complex cases, a
specialist third-party investigator may be called in.
A line manager’s investigations may involve
asking for written responses from other parties
or holding initial meetings with employees
affected by the grievance.
The grievance meeting
The Acas Code states that employers should
arrange a formal meeting without unreasonable
delay after a grievance is received.
21
Discipline, grievance and mediation

The Forestry Commission's formal grievance procedure

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 replies
Within 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.

Consider mediation
If both parties are willing:
The manager will:
Grievance hearing  suspend the hearing,
At the hearing, the manager will:  contact the HR case manager to seek
 listen to their grievance mediation, and
 ask any relevant questions  those involved will try to resolve the
 review any other evidence issue with a mediator.
 consider what happened at the informal stage, and
 ask if mediation can resolve the issue. Employee:
 informs manager of outcome of
mediation, and
 returns case for decision.

Close of hearing
The 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 notification

The manager will:
 write to the employee, usually within 10 working
days Grievance outcome: satisfied
 advise of their decision
 no further action needed.
 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 satisfied

Within 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.

22 IDS HR Study 906 • November 2009


The time and place
Most employers aim to arrange a time for a
meeting within five to ten working days of
receiving the grievance letter. However, the
logistics of getting all the parties involved
together for a meeting can cause delays. Where
the grievance relates to another employee, the
meeting will not usually take place until that
person has had an opportunity to consider a
response.
For equal opportunities reasons, organisations
need to consider the practicalities and
accessibility of a particular venue and any
assistance that employees may require. The non-
statutory Acas Guide on discipline and
grievances at work suggests managers should
also ‘consider arranging for an interpreter where
the employee has difficulty speaking English’.
The right to be accompanied
Workers have a statutory right to be
accompanied by a companion at a grievance
meeting that deals with a complaint about a duty
owed by the employer to the worker. Acas
explains that: ‘This would apply where the
complaint is, for example, that the employer is
not honouring the worker’s contract, or is in
breach of legislation.’
Postponing meetings
Employees and their companions are expected
to make every effort to attend a formal
grievance meeting. Meetings may be postponed
for a valid reason – though usually not for more
than five days.
Conducting the meeting
While feedback from other parties can prove
helpful, the key element of the grievance process
is the meeting with the aggrieved employee. The
grievance meeting typically takes place between
the aggrieved party and the ‘investigating’
manager. However, other parties may also be
involved – for example, colleagues mentioned in
the grievance or members of HR to provide
advice and support.
At the meeting employees should be allowed to
explain their grievance and how they think it
could be resolved. The Acas Guide suggests that
managers should ‘remember that a grievance
hearing is not the same as a disciplinary hearing,
and is an occasion when discussion and dialogue
may lead to an amicable solution’. Moreover,
grievances ‘are not normally issues calling for
snap decisions, and the employee may have been
holding the grievance for a long time’.
IDS HR Study 906 • November 2009
Analysis
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 confidentiality
All 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 procedures
If 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.
Time to reflect
Line managers conducting a grievance hearing
may adjourn the meeting if they feel it necessary
to consider the information before them or to
gather further feedback from other parties. The
Acas Guide suggests that it is good practice to
adjourn a meeting before making a decision on a
grievance to allow time for reflection.
The decision
Employers are expected to notify employees of
their decision on the grievance in writing and
within a reasonable timeframe. Within the
grievance procedures we analysed, most
employers undertook to provide a written
response within five to ten working days. Many
state that if this is not possible they will give an
explanation and inform the employee when a
response can be expected. Some employers
expect line managers to inform employees of the
decision in person, in the first instance.
The written letter should set out the action the
manager intends to take to resolve the grievance.
It should also inform employees that they have
the right to appeal.
23
Discipline, grievance and mediation

The grievance procedure at Barclays

Have you used the informal

stage?
➡ Successful resolution
No further action

➡
If not or if issue unresolved

Consider using informal stage

Grievance to be submitted in
writing to line manager's
manager within
1 month of incident or 10
➡ Stage One Grievance
working days in case of
➡

performance development

Held within 10 working days

➡
➡
of receipt
Hear grievance and Successful resolution

Advise employee of outcome

➡ communicate outcome No further action

within 10 working days of

Stage One meeting
➡ ➡

Grievance to be submitted in
➡ Stage Two Grievance
writing to the next senior
manager within 10 working
days of Stage One decision

Held within 20 working days

➡
➡
of receipt Hear grievance and
communicate outcome Successful resolution

Advise employee of outcome

➡ No further action

within 10 working days of

➡

Stage Two meeting

Process concluded
No further stages of grievance

24 IDS HR Study 906 • November 2009


Lodging an appeal
The Acas Code states that: ‘Where an employee
feels that their grievance has not been
satisfactorily resolved they should appeal.’ Some
employers provide guidance on the grounds on
which employees can appeal. For example,
Affinity Sutton states that appeals should be
made 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 be
escalated to level 3 purely because you disagree
with the decision made at levels 1 and 2.’
Who hears the appeal?
According to the Acas Guide: ‘As far as is
reasonably practicable, the appeal should be
with a more senior manager than the one who
dealt with the original grievance.’ All the
companies that participated in our research
follow this guidance. Of course, in smaller
companies there may not be a more senior
manager available to hear the appeal. In this
instance, another manager at the same level
should be found if at all possible.
How many stages
Most of the companies we spoke to operated just
one level of appeal. However, some – usually
larger – organisations, allow employees to appeal
twice. On each occasion, the appeal is heard by a
more senior manager. As the process escalates, it
is more likely that HR will be called on to attend
the meetings and offer advice. One organisation’s
policy had several levels of appeal, following
which employees’ grievances were referred to
Acas for conciliation and then for arbitration.
Establishing timescales
Employers typically expect employees to make a
formal appeal within five to ten working days of
receiving a written decision on their grievance,
although some organisations give employees
longer to consider their actions. The appeal
meeting is then usually convened in a further five
to ten days.
IDS HR Study 906 • November 2009
Analysis
The Acas Code states that employers should
write to employees with a decision as soon as
possible. The length of time employers allow for
this is again typically five to ten working days.
Collective grievances
Where a number of employees have the same
grievance, employers often apply the same
procedure as for an individual grievance. The
grievance is typically raised in writing and signed
by all parties, with representatives of the group
elected to attend the formal meeting. For
example, RNIB’s policy states that: ‘Where a
grievance is raised by a number of employees,
they should agree which members of staff should
represent them at the hearing/s. A maximum of
three employees may be present with, if required,
one trade union representative of their choice.’
Cereal Partners UK states in its grievance policy
that: ‘In the case of a collective grievance it is
accepted by both parties that no form of
industrial action or activity prejudicial to a
satisfactory resolution will take place before this
procedure is exhausted.’
The Acas Code does not apply to ‘grievances
raised on behalf of two or more employees by a
representative of a recognised trade union or
other appropriate workplace representative.
These grievances should be handled in
accordance with the organisation’s collective
grievance process.’
Many unionised employers make it clear in their
policies that collective grievances should be
handled through accepted collective routes. At
National Express East Coast, for example,
collective grievances are dealt with through
collective bargaining. If at any point it becomes
apparent that an individual grievance has a
collective application, the company refers it to
the appropriate level of its collective bargaining
procedure.
Appeal decisions are final
When informing employees of the decision on
their grievance, employers should also tell them
if the appeal meeting constitutes the final stage
of the formal procedure. While most
organisations set this out in their grievance
policies, few make reference to the possibility of
taking the grievance to an employment tribunal.
25
Discipline, grievance and mediation
Resolving disputes using mediation
A growing number of organisations are looking for alternative means of dispute resolution that are
less adversarial than existing formal procedures, as well as less costly and less damaging in terms of
employee morale. Mediation can help resolve issues in a timely fashion before they escalate. And
unlike formal procedures and employment tribunals, it is non-judgmental. Mediation does not seek
to find out who is right or wrong; it looks to help the parties involved in a dispute address the
underlying issues and rebuild their working relationship.
What is mediation?
The Acas/CIPD employer’s guide to mediation1
defines mediation as ‘a voluntary process where
the mediator helps two or more people in a
dispute to attempt to reach an agreement’.
Mediators do not make a judgement or tell the
parties involved in the dispute what course of
action they should take. They are there to
facilitate a constructive discussion of the issue so
that the parties can themselves find a mutually
acceptable resolution.
The business case for mediation
Mediation offers the potential for a quick
resolution to a dispute. By getting the parties
involved talking about an issue, mediation can
avoid the time and expense involved in pursuing
a formal complaint. Moreover, unlike a formal
disciplinary or grievance hearing – or an
employment tribunal – mediation addresses the
underlying causes of a problem and seeks a
solution that will help the parties involved
rebuild their working relationship. The Acas/
CIPD guide argues that ‘employment tribunals
do not resolve systematic problems at work that
may underly an individual dispute’.
Traditional dispute resolution procedures are
typically adversarial – investigators look for
evidence so that a decision can be made as to
who is right or wrong. In contrast, mediation is
conciliatory in nature. It enables employees to
talk openly about their problems in a neutral
and confidential environment.
Cost analysis
HR teams looking to make a business case for
the introduction of mediation usually start by
calculating the cost of handling workplace
disputes using existing procedures. A formal
grievance requires the time of a line manager to
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.
26
investigate the issue, another line manager to
hear the case and HR to provide support. If the
issue escalates to the appeals stage, further HR
and line manager (usually a more senior
manager) time is required. If the case is then
taken to an employment tribunal, there will be
additional legal costs as well as damages to pay
if the employer loses the case. And this is before
the costs of any sickness absence or a drop in
employee morale is taken into account.
East Sussex County Council estimates that taking
a grievance through its formal three-stage
procedure demands 32 days of HR and manager
time. Using the average salary of a personnel
officer, it estimates the average cost of dealing with
a grievance as £18,000. In contrast, it calculates
the cost of resolving an average mediation case as
£2,400. (See page 32 for a detailed case study on
the council’s mediation service.)
When to mediate
What type of dispute can be mediated?
Mediation can be used to address a wide range
of issues. It perhaps lends itself best to tackling
grievances, particularly where the issue has been
caused by the breakdown of a working
relationship. However, mediation may not
always be appropriate. The Acas/CIPD guide
suggests that ‘managers may not always see it as
appropriate to surrender their discretion in
relation to disciplinary issues where they believe
a point of principle is at stake’.
At what stage should you offer mediaton?
At organisations where mediation is available, it
is usually offered at the informal stage – before a
formal grievance has been raised. Most
commentators agree that the healthiest approach
is for a team to find its own solutions to any issues
that arise. But if a line manager’s attempts to find
an informal solution fail, early intervention
through mediation can help tackle an issue before
both sides’ positions become entrenched.
That is not to say that mediation cannot be used
successfully after formal procedures have begun.
IDS HR Study 906 • November 2009

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.
IDS HR Study 906 • November 2009
Analysis
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.
27
Discipline, grievance and mediation
Mediation can be used at any stage to help the
parties involved reach a mutual agreement. Even
where an employee has lost a grievance case
against his or her immediate line manager after
appeal, mediation may be used to help rebuild
working relationships. And in some instances, a
mediator may be called in to help hammer out a
financial settlement and avoid a tribunal.
A voluntary process
All proponents of mediation agree that
mediation can only be successful if all parties
enter into it of their own accord. All parties must
be engaged with the process and be ready to
compromise to find a solution. Mediation
cannot work where an employee has been
coerced down this route – it is vital that those
involved are ready to talk openly about their
issues and want to find a way forward.
In-house or third-party mediation
Mediation services are available from a number
of not-for-profit and private specialist
organisations. By using a third-party mediator,
employers can help reassure staff that the process
is independent and completely confidential.
Establishing an internal pool of mediators
Some employers – such as East Sussex County
Council and Derbyshire Police – have
established their own in-house mediation teams.
This is likely to be a more realistic option for
larger organisations that can better reassure
disputants that they can call on internal
mediators from a different part of the business to
help ensure impartiality. Employers that have set
up in-house pools of mediators argue that they
can be more effective than those provided by a
third-party as they have a better understanding
of the organisation’s culture.
Training mediators
Organisations that are thinking of setting up
internal mediation teams need to arrange
suitable training. They also need to give thought
to how to select staff to become mediators.
Organisations should aim to involve a good
cross-section of staff. Even if they then do not go
on to actively mediate any cases, internal
mediators can help embed a culture of mediation
within an organisation.
Moreover, developing the skills required of a
good mediator – encompassing active listening,
conflict management, negotiation, problem-
solving and questioning – can only help line
28
managers to manage their teams more effectively
on a day-to-day basis. The Acas/CIPD guide
states: ‘Training staff in mediation skills generally,
to encourage the right management style and the
organisational capacity to deal with conflict on a
day-to-day basis, is a good way to help prevent
disputes happening in the first place.’
Acas and other mediation services offer
certificates in workplace mediation. Experience is
then vital to help mediators hone their skills and,
perhaps most importantly, build their confidence.
Mediators may have to handle emotive subjects
and emotional people. It is therefore important
that they have support networks in place and
that provision is made for ongoing training and
professional development.
Best of both worlds
In practice, employers with their own in-house
mediation services may also call in external
mediators from time to time. A third-party
mediator may be used because internal
mediators already have some involvement in a
case and would not be impartial. In some
instances, the case may be considered too
complex for the internal team and a more
experienced professional mediator may be
preferred.
The mediation process
The exact approach taken to mediation may
vary depending on the nature of a particular
case. However, broadly speaking, the key
elements remain the same.
Arranging mediation
One of the parties involved in a dispute – often
the line manager – first contacts a scheme
co-ordinator to request mediation. A mediator is
then chosen and he or she contacts both parties
to explain what the mediation process will
involve. The mediator must gain their agreement
to participate in mediation and to compromise
to find a solution.
Maintaining confidentiality
Before the mediation itself takes place, both
parties are usually required to sign a
confidentiality agreement. It is important that
the parties involved in mediation are assured of
the confidentiality of the process. The process is
more likely to address the underlying issues if the
participants feel they can be open and honest in
their discussions.
IDS HR Study 906 • November 2009

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.
IDS HR Study 906 • November 2009
Analysis
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
29
Discipline, grievance and mediation
Bringing people together
The mediation itself often occurs in the space of
a single day. The mediator meets the parties
separately to discuss their views and what they
want to say. The mediator does not suggest what
they should say but gets them to think about how
their comments may be interpreted by the other
party. The aim is to ready both parties to have a
constructive conversation when they meet.
At the joint session the mediator acts as a
facilitator. He or she may question the parties to
help them reach an agreed solution, but will not
suggest an answer. The mediator remains in
charge of the process at all times and may decide
to separate the parties at certain points and
speak to them individually – particularly if talks
reach an impasse.
Companions
Employees undergoing mediation are usually
allowed to bring a companion to the joint
session. In some cases, the companion may
speak on an employee’s behalf – for example, if
a relationship has deteriorated to such an extent
that the parties cannot bear to speak to each
other. However, it is generally accepted that
mediation works best if the parties involved talk
directly and agree a resolution together. The
Acas/CIPD guide argues that involving
representatives can formalise the process and
there can ‘be a tendency for representatives to
shift the emphasis from joint problem-solving to
negotiating for the best deal for their candidate’.
More than one mediator
Some organisations (such as East Sussex County
Council) use two mediators for each case – a
lead and an assistant. This puts a greater
demand on resources, but means the lead
mediator has someone to bounce ideas off.
Moreover, it allows newly qualified mediators to
experience a mediation session and develop their
skills without having the pressure of taking
responsibility for the case.
The right surroundings
Choosing the right location for mediation can
help engage the parties and ensure a positive
outcome. Ideally, mediation should occur off-
site in a neutral location. This reinforces the
sense of confidentiality and impartiality and
removes the parties from the scene of conflict.
Break-out rooms should be available if the
mediator needs to split the parties up so that
they can cool off or because he or she wants to
talk to them individually.
30
Reaching agreement
By the end of the mediation session, the parties
should be ready to sign an agreement. This sets
out what actions they will take to resolve the
dispute and help ensure they can work together
without further issues arising.
When relationships fail again
Of course, if a relationship has deteriorated to
such an extent that mediation is required, it is
more than likely that there will be further
problems. At East Sussex County Council, review
meetings are held after six weeks, three months
and six months to check that all parties are
sticking to the agreement made during mediation.
Embedding mediation
Introducing mediation can represent a
significant shift in the way disputes are handled
in an organisation. Achieving buy-in from senior
managers is vital if this culture change is to be
achieved and a culture of mediation is to be
embedded successfully. They will have to sign off
any funds required to purchase third-party
assistance or train an in-house team. And senior
management support helps give the scheme more
credibility.
Line manager buy-in
Buy-in from line managers is also important.
They typically have the greatest part to play in
managing discipline and grievances. If they are
not won over to the concept of mediation it is
unlikely to become embedded within common
working practices as a favoured means of
handling disputes.
Winning over the trade unions
The Acas/CIPD guide recognises that: ‘Some
trade union representatives could perceive that
mediation will weaken their own role, for
example, or that individuals’ statutory rights
could be undermined.’ One of the grievance
policies we examined included a paragraph
suggesting mediation as a possible option to
dispute resolution, but noted that it was not the
approach favoured by the company’s recognised
trade union.
In a heavily unionised workplace, having trade
union support is essential if mediation is to take
hold. This can best be achieved by involving
unions in the design of any scheme from the
outset. East Sussex County Council’s recognised
trade unions were involved from the conception
of the mediation process and throughout its
IDS HR Study 906 • November 2009

design and roll-out. Four trade union stewards
at the council were trained to become mediators.
Employee communications
Employers use a wide variety of means to
communicate their mediation services. Some
may go for a ‘big bang’ approach on launch,
with flyers, posters and roadshows. Piloting
mediation in the first instance can also help
ensure a smoother roll out of the service.
Building mediation into formal procedures
Employees are likely to feel more comfortable
using mediation if it is built into a company’s
formal dispute resolution procedures. Where
employers have done this, mediation is usually
offered as an option at the informal stage. One
policy we examined stated that mediation is
considered before a minor issue escalates to
formal disciplinary action, and after a first or
final written warning – depending on the nature
of the misconduct. Another employer’s grievance
policy said that following the appeal process, the
IDS HR Study 906 • November 2009
Analysis
next stage was to use Acas conciliation and then
Acas arbitration.
At East Sussex County Council, contracts of
employment now state that mediation is the
preferred method of addressing workplace
disputes. Its grievance and dignity at work
policies require managers to offer mediation as a
method of resolving a formal dispute before
beginning formal investigations. At Derbyshire
Constabulary (see the short case study on page
38) mediation is an option at the second stage of
the dispute resolution procedure.
A holistic approach
Mediators accept that mediation is no panacea. It
is not suitable in every circumstance. And line
managers should not view mediation as a way of
avoiding difficult conversations with their teams.
Mediation is just one element in a holistic
approach to dispute management, which also
includes informal resolution and formal
procedures.
31
 case studies
East Sussex County Council introduces mediation
East Sussex County Council introduced an in-house workplace mediation service in 2008. The council
estimates that since rolling out the service it has saved over £500,000 by reducing the time spent
handling disputes by HR and managers. Mediation is now recognised as the council’s preferred
method of dispute resolution. By involving trade union representatives from the start and training
them as mediators, the council has also seen a transformation in its relationship with the unions
when it comes to managing conflict at work.
New approach to conflict
The impact of conflict at work
In 2006/07, there were 44 formal workplace
disputes at East Sussex County Council – and
there were 59 the following year. The council
estimates that each dispute demanded 32 days of
an HR adviser’s time, with a similar
commitment required by line managers, legal
advisers and trade union representatives.
‘But as well as these more direct costs, conflict at
work impacts on morale and can result in
increased employee absence,’ explains Leatham
Green, the council’s Assistant Director of HR.
‘When lines of communication collapse at work
it can have a negative impact not only on
working relationships but also on employees’
family lives. Traditional grievance and dignity at
work policies don’t effectively address in a
timely way the underlying issues or seek a
constructive resolution.’
‘For some time I had thought there must be a
better way to handle conflict at work,’ continues
Green. ‘Dignity at work investigations nearly
always result in everyone walking away
unhappy. And similarly, there are generally no
winners if a formal grievance is instigated.
Having that kind of bad feeling can’t be healthy
for an organisation or for the individuals
involved. The emotional damage can’t be
quantified.’
Green began considering mediation as a more
constructive approach to conflict resolution
following a conversation with a local Unison
branch secretary, Tony Watson. ‘Tony had used
mediation successfully in the past,’ says Green,
‘and we agreed that we should explore its
possible use at the council.’
An in-house mediation team
The council decided to introduce its own
in-house mediation team. The project was
managed by a multidisciplinary team, including
Green and Watson, as well as the council’s Head
of HR Strategy, the Head of Personnel Services,
the Head of Workforce Planning and Training
32
and the Head of Legal Services. ‘We thought that
having in-house capability would be better than
relying on external mediators,’ explains Green.
‘Cost was a key factor – external mediators can
charge as much as £3,000 a day. But we also
wanted a service staffed by people with a
genuine understanding of how business is done
within the council and a positive commitment to
improving the culture of the council over the
long term.’
Agreeing investment
The initial outlay to train 16 internal mediators
was £25,000. ‘That may sound like a lot, but it’s
not a huge amount when you take into
consideration the budget of a council with near
to 17,000 staff,’ says Green. ‘And not when you
look at the potential cost savings.’
The investment was signed off by the Chief
Executive and the finances were drawn from the
council’s ‘Invest to Save’ fund. ‘Money is
available from this fund if you can demonstrate
through a robust business case a return on
investment,’ explains Green. ‘I guaranteed a
return of £100,000 in year one through a
reduction in time to resolve conflict, reduced
costs in absence and back fill of time lost
through attending formal investigations.’
Selecting a supplier
Green contacted a number of specialist suppliers
before selecting Globis (www.globis.co.uk) to
train the council’s in-house mediation team.
‘Their value base fits with what we wanted to
achieve,’ explains Green. ‘And their Managing
Director, Clive Lewis, has an outstanding track
record 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.
IDS HR Study 906 • November 2009

Choosing candidates
The council chose to train a team of 16 people to
act as mediators, all of whom had influential
positions within the council. Four of those
selected to become mediators were trade union
stewards. The aim was to embed the idea of
mediation by winning buy-in from the most
senior levels of the organisation and from the
unions. ‘We thought that even if they never
mediated a case they would prove invaluable in
spreading the word that this was the right
approach to dispute resolution,’ says Green.
Training mediators
According to Green, the training to become an
accredited mediator was exhausting and
possibly the most emotionally challenging he has
ever undertaken. ‘I really felt like I’d been tested
to the limit of my skills,’ he says. ‘Not everyone
passed. That’s good because it shows it’s not a
walk in the park – not everyone can mediate
effectively and successfully. It led to some pretty
difficult conversations with those colleagues
who didn’t meet the standard. However, in all
cases we were able to draw on the positives from
the training event itself.’
Pilot exercise
Once the internal team of mediators had been
fully trained, a short pilot was run to see if
in-house mediation would work. This involved
approaching people within the council and
asking them to allow internal mediators to take
on their disputes. ‘During the pilot we mediated
on eight cases, including one external to the
council,’ explains Green. ‘All the cases were
mediated successfully in one day. Two of the
cases involved employees who had been absent
from work for over six months and on both
occasions they returned to work immediately.’
Learning through experience
The council’s mediators also honed their skills
by working as assistants on cases being handled
by Globis for other organisations. ‘Mediators
typically act as an assistant for a number of cases
before taking the lead on a case. This allows
them to build their confidence and experience,’
says Green. ‘Of course, we never put pressure on
anyone to become a lead mediator. Some people
will probably never feel comfortable taking on
that responsibility.’
Achieving cultural change
The project team building the case for mediation
was looking to deliver more than just internal
capability. ‘Our aim was to drive through a
change in the culture of how disputes were
IDS HR Study 906 • November 2009
East Sussex County Council
handled,’ explains Green. ‘As an employer, the
council is good at holding its hands up when it
has done something wrong and seeking to rectify
it quickly. That’s demonstrated by staff survey
results and employee engagement scores. But the
grievance and dignity at work policies went
against this ethos. We wanted our approach to
tackling disputes to be about seeking a
resolution.’
Making the business case
To achieve this change, the project group sought
formal approval from the council to revise
contracts of employment and relevant policy
documents to include mediation as the preferred
method of dispute resolution. The business case
was grounded on a calculation of the cost of
following the existing formal process compared
with the cost of mediation (see the box on page
34). ‘This was easy to put together,’ says Green.
‘In fact, we significantly underestimated the cost
of the formal process and the cost savings we
were able to promise were still large.’
First, the business case had to be presented to the
HR Management Board. ‘This is effectively HR’s
client group, with representatives from each
department at assistant director or director
level,’ explains Green. Next it had to be put
before the Chief Officer Management Team and
to council members, as it involved a change to
employees’ contracts of employment. Following
this, the approval of the Governance Committee
was required and finally the endorsement of the
full County Council.
‘This whole process takes about three months if
you get your timing right,’ says Green. ‘But
running up to that I spent 12 months preparing:
talking to the unions, department heads, assistant
directors and directors to achieve buy-in. By the
time the proposal went to the various committees
I 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.’
33
Discipline, grievance and mediation
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.’
Trade union backing
The proposed changes to contracts and policies
also had to be agreed with the council’s trade
unions. ‘These include Unison, Unite and the
GMB for managerial and administrative staff
and all of the recognised teacher unions for
schools,’ says Green.
It proved relatively simple to win union backing
for the proposals. ‘Trade union colleagues had
been part of the idea from its very conception
and we kept them involved throughout the
design and roll-out,’ says Green. ‘The trade
union stewards who were trained as mediators
were great champions for mediation and Tony
Watson, our local Unison branch secretary, was
strongly supportive of the idea from the outset.’
Amending contracts of employment
The council’s contracts of employment and
policies on dignity at work, attendance
management and grievance have all now been
amended. ‘There were no fundamental changes
to the processes, but we introduced a new ethos
– a new model for how conflict should be
approached,’ says Green.
The contracts of employment now state that
mediation is the preferred method of addressing
workplace disputes. All new employees are made
aware of this and existing employees were sent
communications to this effect. The grievance
and dignity at work policies now require
managers to offer mediation as a method of
resolving a dispute before beginning formal
investigations.
34
The mediation service
When to mediate
East Sussex County Council believes that
mediation can be an effective method of
resolving all types of workplace disputes. These
could include: communication issues;
personality clashes; unresolved or ongoing
grievance issues; perceived discrimination,
harassment or bullying; differences of working
style or approach; and inappropriate use of
power, status or position.
According to Green, mediation can prove
effective for cases relating to poor attendance
where the underlying issue relates to stress,
bullying or a breakdown of a working
relationship. He believes group disputes can also
be mediated ‘provided all parties are on board’.
In the case of an employee grievance, East Sussex
County Council first expects line managers to
seek an informal resolution. However, if this
proves impossible they are encouraged to
consider mediation. ‘It’s possible that at this stage
an employee may reject the offer of mediation
because they don’t understand exactly what it
means,’ says Green. ‘But that doesn’t mean
mediation can’t be used effectively later on, even
after a formal grievance has been raised.’
Following the first stage of the formal grievance
procedure – which involves an investigation and
grievance hearing – employees may again be
offered mediation if they are unhappy with the
result. ‘And we’ll offer it again and again
following each stage of the procedure in an
effort to find an amicable solution before it goes
to tribunal. In 2008, we had six grievance cases
ready to go to employment tribunal – only one
did,’ says Green. ‘In the vast majority of cases we
can use mediation at some point to find a
resolution. Obviously, the further into the
formal process you are, the more likely
mediation is simply going to be about
negotiating a settlement figure.’
Self-financing service
The council’s mediation service is self-financing
and charges internal (and external) users. There
is no budget for the service so the charges are
necessary to pay for training and resources to
keep mediators’ skills up to date.
Managers are charged £800 a day to
commission the internal mediation team. They
are also expected to pay for a suitable venue.
‘This may seem a lot of money to charge an
internal client,’ says Green. ‘But the service isn’t
about letting line managers abdicate their
IDS HR Study 906 • November 2009

responsibility to manage their staff. Mediation
should be called on when the issue is outside a
manager’s skill set. Anyway, it’s likely to cost the
council much more if it isn’t dealt with.’
Green says that most managers don’t quibble
about the price as ‘by the time they come to us
they are grateful for the help’.
Choosing the mediators
Each case is tackled by two mediators – a lead
and an assistant. Thought is always given to who
should mediate a particular case and who should
assist. ‘Getting the match right can really make
a difference – for example, teaming up a strong
communicator who is good with the emotional
side with someone who is good at closing a deal
works well,’ explains Green. ‘Having union
representatives act as mediators has proven
particularly effective in certain instances. And it
has improved the relationship between HR and
the unions when it comes to dispute resolution.’
Pre-mediation
Before mediation begins, the lead mediator
contacts each party to assess the situation and
their willingness to reach a compromise. This
usually takes the form of face-to-face meetings
or telephone conversations, which typically last
an hour but may run to two.
‘The mediator is not looking back or trying to
determine who is wrong or right,’ explains
Green. ‘If one person isn’t ready or willing to
move, in most cases mediation won’t work. And
if one party only enters mediation because they
have been instructed to, it is also likely to fail.’
Both parties must sign a pre-mediation
agreement. This covers aspects relating to
confidentiality, and the fact mediation is
voluntary and entered into willingly.
One day of mediation
The mediation process itself is usually all carried
out in the space of one day. The day starts at
around 9am and participants are told that there
is no ‘end point’ unless this has been agreed as
part of the pre-mediation discussions. ‘We try
and keep the mediation to one day so that we
don’t lose momentum’ says Green. ‘The latest
we’ve ever run to is 8pm.’
Venue
Mediation is always carried out off site in a
quality venue to reinforce the message to
participants that there is importance attached to
the process and that it is neutral. Both parties are
brought together in the same room at the
beginning of the mediation and then retire to
IDS HR Study 906 • November 2009
East Sussex County Council
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 parties
The 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 mediation
The 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 agreement
Mediation 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.
private rooms. On occasions throughout the day
they may be brought together. The mediation
ends with a joint meeting where the parties agree
to the terms of the settlement or confirm that an
agreement has not been reached. The parties can
bring as many companions as they like.
‘Whatever makes them feel most comfortable –
although we always try to keep this to a
minimum,’ says Green.
Opening statements
Each party is asked to make an opening
statement – usually the employee who has made
a complaint is asked to speak first. This should
cover the key facts of the case from his or her
perspective and set out what he or she hopes to
achieve. The other party cannot interrupt or
comment, or seek to clarify points. ‘They have to
35
Discipline, grievance and mediation
sit and listen and allow the other party to air their
views fully, and ensure they listen to what is said.
This allows each party to get their feelings off
their chest without having to defend their
comments,’ explains Green. ‘You don’t get this
opportunity to talk about how you feel at a
formal grievance hearing or at tribunal, and often
this is what allows a settlement to be achieved.’
‘We encourage each party to speak for
themselves,’ continues Green. ‘However, they
may elect a representative to speak on their
behalf. Sometimes the relationship between the
two parties has broken down to such an extent
that they can’t talk to each other directly.’
Talking to parties individually
Following the opening statements, the lead
mediator may consider it necessary to talk to one
or more of the individuals in private. ‘The
mediator is in charge and must be trusted by
both parties to manage the process,’ says Green.
‘For example, it may be necessary to remind a
solicitor present that this is not a court of law –
the aim is to reach an agreement that is suitable
to both parties and not debate the finer points of
a policy or a point of law.’
‘Some people get a lot just from unloading their
feelings on the mediator at the break-out
sessions,’ continues Green.
Reaching agreement
If an agreement is reached, it is signed by both
parties and witnessed by the mediator. ‘It’s not
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’ network
The 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 pairs
Two 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 summaries
Mediators 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.
36
legally binding but we do see it as morally
binding,’ says Green. Any agreement involving
an employee exit will be confirmed in a
compromise agreement.
Follow-up sessions
Review meetings are held after six weeks, three
months and six months to check that both parties
are sticking to the agreement (except where
mediation has involved an exit). Either party can
contact the mediators at any point between these
dates to discuss any issues that arise.
‘It’s unlikely that two people who have been
involved in a dispute will ever be the best of
friends and it would be naïve to think problems
won’t arise again,’ says Green. ‘When it’s an
issue between an employee and their manager,
we expect the manager to be flexible. Our
position is that managers are responsible for
their employees’ welfare. There is a greater
weight on them to comply with the agreement
and take the lead in rebuilding the relationship.’
Calling on external expertise
Nine out of ten cases where mediation is
requested are now handled in-house. But external
mediators are used if the demands of a case go
beyond the experience level of the internal
mediators. Moreover, there are some long-term
disputes at the council pending employment
tribunal. ‘In these cases, many of our internal
mediators – particularly from the HR and trade
union side – have already had some involvement
in the formal grievance process and therefore
can’t mediate,’ explains Green.
A success story
In 2008/09, all 34 cases referred to East Sussex
County Council’s mediation team were resolved
successfully. In the same period the number of
formal workplace disputes fell by 47 per cent.
Three employees returned from long-term sick
leave immediately after mediation.
£500,000 saved
The council recouped its initial £25,000
investment in just one month. HR has calculated
that on average it takes three days to resolve an
issue using mediation, compared to 32 days with
a formal grievance process – in terms of cost, this
equates to an outlay of £2,400 instead of
£18,000. ‘We estimate that in total we’ve
reduced the time spent by managers and HR on
tackling workplace disputes by 5,000 days,’ says
Green. ‘On the basis of a personnel officer’s
average salary that means savings for the council
of over £500,000. And an indirect benefit of
IDS HR Study 906 • November 2009

involving mediators is that HR has more time to
focus on strategy.’
Gaining wider recognition
The mediation service is gaining wider recognition
both within and outside the council. The team
now mediates on commercial disputes for the
council. ‘We have been able to resolve commercial
disputes over contracts worth thousands of
pounds,’ says Green. The team is also now used
by three other local public sector organisations
and has received interest from private sector
employers. And the council is a finalist in the
CIPD People Management Awards 2009 for its
introduction of workplace mediation.
Working with the unions
Green believes that the mediation service is the
best HR initiative the council has ever rolled out:
‘The cost savings speak for themselves. But more
IDS HR Study 906 • November 2009
East Sussex County Council
than that we have successfully introduced a new
culture around handling workplace disputes –
one that really seeks to address the underlying
issues and find workable solutions.’
‘Perhaps most gratifying is the fact that the
mediation project – and in particular having
union stewards acting as mediators – has
completely changed our relationship with the
trade unions when it comes to conflict at work,’
continues Green. ‘Before, where formal
grievances were being pursued, both parties
tended to take an adversarial position. Now, we
work together through mediation to seek a
mutually acceptable resolution. This has to be
one of the biggest transformations we’ve
brought about with trade unions and
management working in a true and meaningful
partnership. We haven’t achieved the same level
of union buy-in for any other initiative.’
37
Discipline, grievance and mediation
Derbyshire Constabulary seeks constructive solutions
Derbyshire Constabulary’s approach to dispute resolution focuses on understanding the underlying
issues and finding constructive solutions. Instead of investigating grievances, line managers seek to
bring the parties involved together to discuss their problems and agree a mutually acceptable way
forward. Mediation and joint problem-solving are available to help resolve more intractable disputes.
In the introduction to its dispute resolution
policy, Derbyshire Constabulary recognises the
importance of maintaining good staff relations
and promoting fairness at work. It also
establishes its belief that ‘workplace disputes
provide opportunities for the organisation to
learn and improve. It is essential to the running
of an effective police service that workplace
disputes are resolved effectively, efficiently and
in a timely manner.’
The constabulary has moved away from an
approach based on investigating claims towards
one of seeking to understand the different
viewpoints of the parties involved and finding a
mutually agreeable solution. The purpose of its
policy is ‘to provide a channel for staff to raise
issues of concern and to access methods of
resolution that are constructive and fair’.
Informal resolution
Employees are encouraged to raise any issues
informally with their line manager, an HR
manager or a staff association representative in
the first instance. Informal resolutions may
involve a line manager meeting each party
separately or together to discuss the matter and
seek a solution. In its policy, the constabulary
gives the following examples of the form a
resolution 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 grievance
If the issue is not dealt with successfully by
informal means, employees can raise a formal
grievance. To do so, the aggrieved person must
complete a dispute resolution form. This is
handed to the appropriate line manager, who
can offer assistance in filling it out. If the
38
complaint relates to the line manager the form
should be passed to the next manager up.
The manager involved has 21 calendar days
from the date the grievance is received to
attempt to resolve the issue. Support and advice
is available from the local HR manager, who will
also monitor progress.
Parties meet to discuss resolution
The manager should meet separately with the
aggrieved party and any other parties involved
within seven days to discuss the grievance. If any
party is absent from work, managers may
conduct home welfare visits to discuss the issue.
A meeting of all parties is then arranged. The
constabulary recognises that this may be difficult
and a number of separate meetings may be
required initially. However, it believes that ‘it is
necessary for the parties to meet in order to restore
a working relationship’. At the meeting the stage
manager should review the key points and suggest
a resolution, which is confirmed in writing.
Joint problem-solving and mediation
In the event that the issue remains unresolved
after 21 days, the employee must update the
dispute resolution form and send it to the local
HR manager. There are two options at this stage:
joint problem-solving or mediation. If the first
option taken is unsuccessful, the other can be
tried – providing it can be completed within the
21 days given to resolve an issue at this stage.
Joint problem-solving
Joint problem-solving is considered to be best
used when the dispute relates to procedural
issues or terms and conditions, and less effective
when the issue is about working relationships. It
involves 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.
IDS HR Study 906 • November 2009
 Derbyshire Constabulary

a controlled environment. The session is chaired
by a trained mediator who acts as an impartial
facilitator. All those present – the disputants,
staff association representatives and the
impartial facilitator – can suggest solutions.
Mediation
The second option, mediation, is carried out by
an employee trained and nationally accredited in
mediation practice. The constabulary has an
internal pool of mediators, which includes
employees drawn from across the whole county.
This helps ensure impartiality as mediators can
be selected from areas geographically remote to
the dispute. The mediators also represent a
diverse cross-section of the constabulary in
terms of race, gender and ethnicity.
Unlike the joint problem-solving process, staff
association representatives cannot attend
mediation sessions because ‘mediation is about
dealing directly with the parties involved so that
they can take ownership of their own solutions’.
They can, however, provide support to those
involved.
The constabulary established that any issues
disclosed during mediation should remain
confidential and cannot be used in other
proceedings, such as an employment tribunal.
This is key to establishing ‘a safe environment for
open discussion and resolution of the dispute’.
Mediation can only proceed if all parties agree to
participate. If any party does not agree, joint
problem-solving must be attempted.
Appeals panel
If mediation and joint problem-solving are
unsuccessful, the issue is put before an appeals
panel. This includes HR and independent staff
representatives. 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 Constabulary

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

21 days 21 days 21 days

STAGE TWO 'A'

Joint problem-solving
STAGE ONE STAGE THREE
Facilitated meeting of relevant
Raise concern parties (impartial facilitator)
APPEAL
with line manager Panel review
Staff associations can attend
Parties should meet to Chaired by senior manager,
Informal discuss and try to with an independent HR
resolution resolve the issue – the STAGE TWO 'B' manager and relevant staff
parties have a right to association representatives
be accompanied
Mediation sitting on the panel
by a representative
Impartial trained mediator
The local HR manager's assists parties in exploring
guidance must be sought the issues and generating
solutions (without Corporate review
representatives)
Monitoring by employee
relations, HR
Staff association advice, Care
First counselling
services and guidance from
local HR manager available
throughout the process

IDS HR Study 906 • November 2009 39

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