Gemma Brown identifies the key points to enable NHS employers to make the most of bad situations.

Dealing with misconduct, poor performance and grievances in the workplace can be time consuming and costly. Moreover workplace disputes can lead to poor motivation and low morale in staff, particularly if not handled correctly. Here we look at some key points to enable NHS employers to make the most of a potentially bad situation.

The general principles that employers should follow when dealing with disciplinary or grievance matters are:

  • Concerns should be dealt with promptly
  • Employers should act consistently
  • Matters should be investigated thoroughly
  • Employees should be given the right to be accompanied

Many employers or managers will allow a considerable amount of leniency before taking formal action to address misconduct or poor performance in staff. The problem with adopting this method is that to a certain extent the employer is condoning the poor behaviour. 

What will often happen then is that the employer will reach the “last straw” and will wish to issue a final written warning or even dismiss the employee at first instance which, in the eyes of justice, is likely to be considered unfair. 

Very few people will enjoy finding themselves in such situations but when faced with disciplinary concerns or grievances putting matters off will most likely make the situation worse and risk ruining the employment relationship.  Better to deal with matters by following a transparent procedure.

In contemplating action to address a disciplinary or performance issue, or where an employer has received a complaint, or grievance, from an employee, the first step is to locate any relevant procedure that should be followed. 

Employers are required to include certain details of disciplinary and grievance procedures within an employee’s statement of terms and conditions of employment. Usually these will be included within the employee’s contract of employment.  Employees must be issued with these terms and conditions within two months of commencing employment.  Disciplinary and grievance policies might also be found in a staff handbook.

It is possible that a collective agreement will apply or even that statutory regulations may outline procedures that must be followed. For example the “Maintaining High Professional Standards in the Modern NHS” (MHPS) framework was placed on a statutory footing by the Directions on Disciplinary Procedures 2005. This sets out the procedure for addressing misconduct or poor performance for doctors and dentists employed by the NHS.

Finally both employers and employees should ensure that they follow the ACAS Code of Practice on Disciplinary and Grievance Procedures when contemplating disciplinary action or grievances. Failure to do so could result in an adjustment of a tribunal award by up to 25 per cent.

Whatever the procedure it should include the requirement to investigate the facts and, if it is deemed that formal action is appropriate, the employee should be invited to a disciplinary or grievance hearing.

Reasonable written notice of the hearing should be given and in the case of disciplinary hearings the employee should be supplied with any evidence that the employer is relying upon in raising the allegations. The employee must be given the right to be accompanied at a disciplinary or grievance hearing.

There is a statutory right for workers to be accompanied to disciplinary or grievance hearings by a colleague or trade union official or representative. This right may be extended by regulations or a collective agreement. For instance doctors and dentists covered by the MHPS framework can choose to be accompanied by a spouse, partner or friend rather than a colleague or trade union official.

At the hearing the matters of concern should be explained in detail and the employee should be given an opportunity to put their views.  After the hearing the employer must consider all the facts and make their decision which should be communicated to the employee in writing. Finally the employee should be given the opportunity to appeal the decision.

When dealing with disciplinary matters, unless the poor performance or misconduct is very serious and so would warrant a more severe outcome, the stages of disciplinary action are as follows:

  • Informal warning
  • First written warning
  • Final written warning
  • Dismissal

In relation to poor performance as a result of incapability the employer may well have a separate policy which they should follow. The policy should be reasonable and follow the spirit of the ACAS Code of Practice in order to reduce the risk of any subsequent dismissal being held to be unfair.

Employers will find that addressing concerns and dealing with employees’ complaints promptly and consistently will improve employee engagement and overall performance.  What is more, it is essential that a fair procedure is followed in order to reduce the risk of costly tribunal claims.