Points to consider when negotiating disciplinary procedures

In many workplaces, disciplinary procedures are highly standardised, and particularly in the private sector, their content tends to be largely viewed as a “management issue”. There is a limit to what can be achieved through negotiation. Even so, reps in unionised workplaces have achieved successes. Points to consider include the following:

• Status: to avoid uncertainty, try to ensure the procedure is expressly described as having contractual status.

• Enhancing the right to be accompanied: Workers only have a legal right to be accompanied to a disciplinary or grievance hearing. Try to negotiate to extend the right to be represented to include, for example:

◊ investigation meetings;

◊ all staged reconstructions;

◊ viewings of CCTV evidence;

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

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

• Representation: Do you need to extend the right to paid time off to include members working for other employers — for example, are there a large number of members who are temporary agency workers on site, or members who are facing TUPE-transfer to another employer where recognition may not be granted? (see Chapter 8: The right to be accompanied).

• Make sure the policy covers all new joiners and those who have not yet built up enough service to bring a claim for unfair dismissal.

• Rules on postponement of meetings due to the unavailability of the rep. These rules are quite restrictive. They only apply to meetings where there is a right to be accompanied (i.e. disciplinary and formal grievance meetings), and the rules only allow permit one postponement to a new date within five working days of the original date. Try to build in a more generous timeframe and make sure the rules extend to all the different kinds of meeting where representation is allowed under your procedure.

• Evidence: Can you agree clear precise rules on the number of days in advance of the hearing when evidence must be provided to the member, for example, at least 10 working days? It is much easier to hold the employer to account against a fixed timescale.

• Surveillance evidence: Do you need to agree precise rules about the treatment of evidence obtained through surveillance, for example, CCTV footage or vehicle tracking devices? A separate policy may need to be developed to deal with these issues, which must be consistent with the discipline and grievance procedure. There is more guidance on this, including examples of negotiating successes, in the LRD booklet Social media, monitoring and surveillance at work, 2012, price £7.00 www.lrdpublications.org.uk/publications.php?pub=BK&iss=1604

• 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 will include an explicit commitment that the punishment will always be proportionate to the offence and will take into account factors such as the employer’s need to act consistently.

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

• 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 also needs to be a clear rule that lapsed warnings will be disregarded (see Chapter 9: Disciplinary warnings).

• Witness statements and cross-examination: Try and secure a commitment from the employer that witness statements will always be supplied in cases of alleged misconduct (except in highly exceptional circumstances, for example, where the witness insists on anonymity for a good reason), and that witnesses will be made available for cross-examination. Check that the rules for when a witness insists on anonymity 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 in which to appeal. The Acas Guidance suggests five working days as a deadline for the employee’s appeal. This may not be enough, especially if the employee wants to seek 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 update this 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 need to be properly taken into account. For public sector employers, remember the Public Sector Equality Duty.

• Monitoring: Agree procedures to monitor patterns in disciplinary decision-making to guard against unlawful discrimination, for example, a pattern of more frequent instigation of formal procedures or use of more severe sanctions against black workers (see Chapter 6: Discrimination). Secure a commitment to share the results with the union.

• Changes: Including a commitment to consult 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 given to the member 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.

• 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: Can you agree clear rules governing what happens when an employee lodges a grievance after the disciplinary process has been 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 a formal status quo or standstill agreement in place, employees are not legally entitled to refuse to accept changes until a grievance procedure has been exhausted (see Chapter 11: Status quo agreements).