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3. INFORMAL AND FORMAL PROCEDURES
The Acas Guidance recommends that cases of minor misconduct or unsatisfactory performance are usually best dealt with informally. “A quiet word is often all that is required to improve the employee’s conduct or performance”. In some cases, training, coaching and advice is all that is needed. Most disciplinary procedures begin by referring to the option of dealing with problems informally, and employers should be encouraged to deal with cases of minor misconduct or unsatisfactory performance at that level.
The Acas Code warns employers to take care that any informal action does not turn into formal disciplinary action and to make sure informal action does not become an ongoing part of the disciplinary procedure or get used as the basis for any future disciplinary action. For 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 saw some teachers trying to restrain a child in a way that she thought was hurting the child and she asked them to stop. The Head called her aside and told her that her intervention was not appropriate. However, the Head did not give her a formal warning or offer her any training.
A few months later, the Head introduced a new “Restraint of behaviour” policy. Training was provided, but Mrs Fuller did not take it up, as she did not work with the children. She later witnessed an incident of “vigorous restraint” and again asked staff to stop, in front of the child. When the Head asked her to leave the room, she refused. She was dismissed for gross misconduct, for “repeated and inappropriate intervention in behaviour management”.
The Court of Appeal agreed with the tribunal’s conclusion that no reasonable employer would have dismissed Mrs Fuller for a one-off incident of this kind, and that instead a lesser penalty would have been imposed. The earlier incident had been taken into account inappropriately. The dismissal was unfair.
Fuller v London Borough of Brent [2011] EWCA 267
Reps should note that there is no right to be accompanied to an informal disciplinary meeting (see Chapter 8). If, during any informal discussion, it becomes obvious that the issue may be too serious for an informal approach, Acas says the meeting should be adjourned and the employee should be told that the matter will be dealt with instead under the formal procedure.
The Acas Guidance suggests that employers should “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 of the note and an opportunity to make sure it accurately reflects what was agreed. At this stage, it is sensible to clarify any discrepancies, for example, by following up the meeting with a note or email recording the employee’s understanding of what has been agreed, and in particular, what support is to be provided and when, and who is responsible for making sure it happens.
Depending on the circumstances, the member might think about starting to keep a personal diary of events, to act as a reminder in case it is needed later.