Sometimes dealing with disciplinary and grievance appeals can be a struggle for SMEs particularly when the initial decision has been taken by the only person available: the owner. If the employee subsequently brings a claim, the SME will be expected to have followed the statutory Acas Code of Practice on disciplinary and grievance procedures. Failure to follow the Acas Code does not of itself give rise to a breach of an employee’s legal rights, but it must be taken into account by a tribunal and can lead the tribunal to increase compensation awarded by up to 25%.
With appeals, the Acas Code says:
‘The appeal should be dealt with impartially and, wherever possible, by a manager who has not previously been involved in the case.’
The Code is backed by a non-statutory guide, which is only helpful if the SME is large enough to have a couple of layers of management:
‘In small organisations, even if there is no more senior manager available, another manager should, if possible, hear the appeal. If this is not possible consider whether the owner or, in the case of a charity, the board of trustees, should hear the appeal. Whoever hears the appeal should consider it impartially.’
If the issue is factual, for example, in a grievance about whether an employee has been paid correctly, a business owner may feel that they can be impartial when considering an appeal against their own decision. However, sometimes impartiality is harder to accept.
In a recent situation, I was contacted by the owner of a small SME who had been accused by an employee of bullying. The owner had taken the initial decision himself, which was not in the employee’s favour. The employee had appealed, and he contacted us because he felt that he could not hear the appeal himself (there was no one else in the company who could take the decision). Although the Acas Code didn’t require him to outsource the appeal, he thought that his employee would be more likely to accept a decision by a third party, whatever that decision may be. He also commented that if the employee subsequently resigned and brought a claim, he felt that the fact that he had outsourced the appeal would stand him in good stead at a tribunal hearing.
I heard the appeal on behalf of the SME and though I did not uphold the appeal, the employee understood the reasons why. They subsequently told the owner that they were happy with the decision and the fact that he had outsourced the appeal made them feel that they were being treated seriously and with dignity.
It can be a big decision to outsource an appeal. You may feel very vulnerable in handing over the decision making to an outsider. What happens if the appeal finds in the employee’s favour? However, a good decision (which ever way it goes) can include recommendations and suggestions for support to move forward. For an employee, outsourcing the appeal can make the difference between feeling like the decision was impartial and feeling like the decision was made before the appeal even started.
Julie and I love this kind of work. It is always interesting and a real pleasure to help a small business resolve a discrete problem in circumstances where the business owner had taken the brave decision to hand over the decision making to someone else.
If you would like to talk to us about outsourcing a disciplinary or grievance hearing or appeal, please contact us.
For more specific information or to discuss your requirements please call either Amanda Galashan or Julie Calleux at Employease on 03339398741, or email us at firstname.lastname@example.org. This note does not constitute legal advice on any particular situation you may have.
Copyright: Employease 2021