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3. Informal and formal procedures
[ch 3: pages 18-19]The Acas Guidance recommends that minor misconduct or unsatisfactory performance is usually best dealt with informally with “a quiet word”. Sometimes training, coaching and advice are all that is needed. Most disciplinary procedures begin by encouraging managers to deal with cases of minor misconduct or unsatisfactory performance informally.
The Acas Code warns employers to take care that informal action does not turn into formal disciplinary action or become an ongoing part of the disciplinary procedure, or get used as the basis for any future disciplinary action. Here is an example:
Mrs Fuller was a bursar at a school for children with social and emotional difficulties with eight years’ service and a clean disciplinary record. One day, she noticed teachers trying to restrain a child in a way she thought looked painful and she asked them to stop. The headteacher called her aside and explained, in an informal discussion, that her intervention was not appropriate. However, she was not given a formal warning or offered any training.
A few months later, the headteacher introduced a new “Restraint of behaviour” policy. Training was provided, but Fuller didn’t take it up, as she didn’t work with children. She later witnessed an incident of “vigorous restraint” and again intervened to ask staff to stop, in front of the child. When asked to leave the room, Fuller refused. She was dismissed for gross misconduct for “repeated and inappropriate intervention in behaviour management”.
The Court of Appeal agreed with the tribunal that no reasonable employer would have dismissed her for a one-off incident of this kind. Instead, a lesser penalty should have been imposed. The earlier incident should not have been taken into account, said the Court, and the dismissal was unfair.
Fuller v London Borough of Brent [2011] EWCA 267
There is no right to be accompanied to an informal meeting (see Chapter 8). If, during any informal discussion, it becomes clear that the issue may be too serious for an informal approach, Acas says the meeting should be adjourned and the employee should be told the matter will be dealt with instead under the formal procedure.
The Acas Guidance suggests that employers “keep brief notes of any agreed informal action for reference purposes”, and that there should be progress reviews over specified periods.
The employee should be given a copy and a chance to make sure it accurately reflects what was agreed. At this stage, it is sensible to clarify discrepancies and to record, for example in an email, the employee’s understanding of what has been agreed, what support will be provided and when, and who is responsible for making sure it materialises.
Depending on the circumstances, the member might consider starting a personal diary of events at this stage, in case it is needed later.