Negotiating disciplinary procedures 


In many workplaces, disciplinary procedures are highly standardised. Particularly in the private sector, their content is largely viewed as a management issue and there is a limit to what can be changed through negotiation. Even so, there are clear gains for the employer in ensuring that a collective voice is properly heard when agreeing disciplinary rules, helping to secure fairness, perspective, and a good understanding of the rules and their purpose. Here are some points to consider:


• Contractual status: Try to ensure the procedure is described as having contractual status. This will significantly strengthen a member’s ability to argue that each stage must be followed properly and that only the sanctions specified in the procedure can be used. 


• Enhancing the right to be accompanied: All workers have a legal right to be accompanied to a disciplinary or grievance hearing. However, not all complaints qualify as “grievances” entitling the member to exercise this right (see Chapter 8: The right to be accompanied). Try to negotiate to extend the right to be accompanied, to cover, for example:


◊ investigation meetings; 


◊ staged reconstructions;


◊ progress meetings during long-term sickness absence and return- to-work interviews (usually covered in a separate Absence Management Procedure); 


◊ redundancy consultation meetings (usually covered in a separate redundancy procedure).


• Who can you accompany? As a workplace rep you are only allowed paid time off to represent someone with the same employer as you. Can this be extended to include members who work for other employers, such as members who are temporary agency workers on site, or members facing TUPE-transfer to another employer where recognition may not be granted? (See Chapter 8: The right to be accompanied). 


• What about new joiners? Make sure the policy covers all workers, including new joiners, trainees and probationers. 


• Rules on postponing meetings due to unavailability of rep: These rules are restrictive (see Chapter 8: The right to be accompanied). They only apply to meetings where there is a statutory right to be accompanied (i.e. disciplinary and formal grievance meetings), and only one postponement is allowed, to a date within five working days of the original date. Can you agree a more generous timeframe, and make sure the rules cover all types of meeting where representation is allowed under your procedure?


• Evidence: Can you agree clear rules on how many days in advance of the hearing evidence must be provided to the member, for example, at least 10 working days? It is much easier to hold an employer to account against a fixed timescale. Include digitally generated evidence such as YouTube videos, screen prints of Facebook entries, copies of tweets and so on, as well as thinking about rules for any staged reconstructions.


• Surveillance evidence: Can you agree precise rules about the treatment of evidence obtained through surveillance, for example, CCTV footage, sound recordings or vehicle tracking devices? Will this material be used for disciplinary purposes or not? If yes, what arrangements will be made for you to view it with the member? How many days in advance of the disciplinary hearing? In any event, the whole footage should be made available, not just the part that incriminates the member. 


• Consider asking for an explicit commitment that both the investigating officer and the hearing officer will be independent and impartial individuals with no history of disputes with the employee.


• A good procedure should include an explicit commitment that the punishment will always be proportionate to the offence and will take into account factors such as the need for consistency. 


• Alternative sanctions: Make sure rules about alternative sanctions such as demotion, relocation, or change of duties are clear.


• Warnings: Try to agree a fixed timescale for the length of warnings. Acas suggests up to six months for a first warning and 12 months for a final warning. There is no formal right to an oral warning but this could be built into the procedure. Try to agree a clear rule that lapsed warnings will always be disregarded (see Chapter 9: Disciplinary warnings). 


• Witness statements and cross-examination: Try to secure a commitment that witness statements will always be supplied in cases of alleged misconduct, and that witnesses will be made available for cross-examination (in practice cross-examination is rare). Check that any rules for anonymous witness evidence are as clear and fair as possible (see Chapter 4: Anonymity). 


• Decision and appeal: Agree clear deadlines for the written decision and adequate time limits for appeal. The Acas Guidance suggests five working days as a deadline for the employee’s appeal. This may not be enough, especially if they need legal advice, or if the incident takes place over a holiday period, when fewer union reps may be available. Ten working days might be more reasonable. 


• Discrimination: Encourage the employer to carry out an equality impact assessment of the procedure and its implementation, and to update it regularly in consultation with the union. In particular, the needs of groups such as disabled or young workers, those on maternity leave or long-term sickness absence or non-native English speakers should be considered. For public sector employers, remember the Public Sector Equality Duty. 


• Monitoring: Agree procedures to monitor patterns in disciplinary and grievance outcomes to guard against unlawful discrimination, for example, a pattern of more frequent instigation of formal procedures or more severe sanctions against black workers. Secure a commitment to share results with the union.


• Changes: Secure a promise to consult with the union on changes to the procedure.


• Minute notes: Agree clear rules about the treatment of minutes. Try to agree, for example, that a manuscript copy of the minutes will be provided as soon as the meeting ends, with typed notes to follow within five working days. Make sure workers have the right to comment on draft minutes before they are finalised.


• Recording devices: Consider the pros and cons of agreeing a rule as to whether meetings should be recorded (see Chapter 7: Recording devices).


• Overlapping discipline and grievance procedures: Agree clear rules for what happens when an employee lodges a grievance after the disciplinary process has started (see Chapter 7: Overlapping disciplinary and grievance procedures).


• Status quo or standstill agreement: Is there a “status quo” agreement, so that unwelcome changes to working practices do not come into effect until the grievance procedure has been exhausted? Without one, employees risk a fair dismissal if they refuse to implement changes (see Chapter 11: Status quo agreements).