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Fairness and Transparency in Discipline and Grievance Procedures: A Study in Equality.

Guest blog by Liz Alyott, Employment Litigation Support Consultant & Lecturer at University of East London

Imagine that you are an employee who has come through a discipline procedure, and you now have received the outcome letter. You write to HR expressing that you feel that neither the process nor the outcome is fair. But what do you mean by “fair”? Do you mean that you have been discriminated against? Or maybe it is just that you do not like the outcome. And does “fairness” matter?

The Acas code requires managers to follow “full and fair” grievance and discipline procedures but there is no definition of “fairness”. How do we know what fairness is? Yet, we feel strongly when we experience unfair treatment.

Recognising unfairness is a skill that we have developed throughout our childhood from when our siblings first stole our favourite toy or the last piece of chocolate!

Fairness comes from “the ability of individuals to imagine the emotions of others”; that we rely on their empathy (Bendz). However, we are aware of the possibility of bias, conscious or unconscious. Rawls – in the book A Theory of Justice  – suggests we work behind “a veil of ignorance” to ensure a fair outcome. Fitness to Work Questionnaires and Occupational Health Reports keep managers ignorant of an employee’s disability, to prevent discrimination and Employee Voice Surveys and Employment Diversity Questionnaires remain anonymous.

But if discipline and grievance procedures cannot keep the employee anonymous, can these procedures be truly fair and bias-free?

Leventhal provides rules from which we are more likely to find an understanding of fairness that supports the use of grievance and discipline procedures. He suggests that procedures should be consistent. Grievance and discipline procedures should be applied reliably regardless of whether the employee has, for example, White British, Nepalese or Kenyan heritage. The only time this may vary is if a translator is required or when reasonable adjustments are needed to ensure that a person with a disability is not disadvantaged, for example if sign-language is needed for a deaf employee. Decisions made should be unbiased and based on all the available information – this means that all evidence that an employee provides at a disciplinary should be used, not just evidence which may lead the manager to dismiss the employee. Decisions should also be correctable, and the appeal is the process by which this can be done.

Taylor v OCS Group Limited [2006] ICR 1602 provides guidance about how the appeal can correct an unfair discipline decision in certain circumstances. Leventhal, (1980) also refers to components and these are particularly useful for HR professionals and managers to support the provision of transparency and fairness. Managers who are selected to investigate an issue or to hear the discipline should be trained to do so. Also, the details of the allegations should be clear in good time so that the employee can defend themselves. These issues are important for the employee who needs to feel the process has been fair, and for their colleagues who view the process from a distance.

Why is fairness important? If we feel that the process has been fair, we are more likely to accept an unfavourable outcome.

Whether this would extend to a dismissal outcome is questionable, but if the process is fair then it makes it harder to argue at Employment Tribunal. If we feel the process is transparent then we are less likely to fear that the outcome was chosen, for example, because we are gay, because our faith requires us to attend Friday prayers or because we are deemed too old or too young to carry out our job.

How does this relate to equality in the workplace, particularly as an employee never expects to be subjected to these procedures? New employees expect transparent processes and may be attracted elsewhere if they feel that the workplace procedures are not fair. Unfair or obtuse procedures may demonstrate that meeting key performance measures are more important than the way a manager behaves – as it is not clear that any complaint would be dealt with fairly. This leads to a toxic work environment where bullying is hidden.

If an employee is subject to unfair procedures and cannot see any other reason for the unfairness, then they will assume discrimination.

Employees who leave feeling aggrieved and discriminated against have access to Employment Tribunals but also to social media and may post views or make reviews on sites like Glassdoor, which damage the business’ reputation. If employers value their workforce, then they will ensure the procedures are fair and seen to be fair – and if your employer does not, then I suggest that the alarm bell is ringing for you to exit swiftly.

Thank you to Liz for guest writing this blog. Are you a HR professional and would like to improve fairness? We can help with timeframes, accuracy of all the employee’s correspondence via our Employee Relations Case Management solution – Assure HRCase (formerly ERTracker).

Businesses want to look after their employees, so by having a robust system in place to ensure each case is dealt with in the same fashion, with the same level of care,  employees will feel that the outcome is fairly decided, hopefully reducing the risk of the company being involved in an employee tribunal.

Find out more about Assure HRCase

You can also read another guest blog by Liz Aylott here: ‘Supporting Women Workers through the Menopause’

References & Further Reading

Acas (2015) The Acas Code of Practice on Disciplinary and Grievance Procedures. London: Acas. Available at: https://www.acas.org.uk/acas-code-of-practice-for-disciplinary-and-grievance-procedures/html

Bendz, F. (1997) Morality as Fairness. Available at: http://www.update.uu.se/~fbendz/philo/fairness.htm

Folger, R., & Cropanzano, R. (1998) Organizational justice and human resource management. Beverly Hills, CA: Sage.

Leventhal, G. S. (1980). What should be done with equity theory? New approaches to the study of fairness in social relationship. In K. J. Gergen, M. S. Greenberg, & R. H. Willis (Eds.), Social exchange: Advances in theory and research (pp. 27–55). New York: Plenum.

Rawls, J. (1999) A Theory of Justice Harvard University Press, Cambridge MA