The 2014 ACAS Paper 'Analysis of the nature, extent and impact of grievance and disciplinary procedures and workplace mediation using WERS2011' by Professor Stephen Wood, Dr Richard Saundry and Professor Paul Latreille has been published. The analysis is based on the Workplace Employment Relations Study of 2011 and comparisons are made with its 2004 predecessor.

The Paper considered in particular:
(1) The nature and extent of Disciplinary and Grievance Procedures;
(2) The introduction and use of Workplace Mediation in British workplaces and the key factors determining its use; and
(3) The relationship between workplace procedures, workplace mediation and key outcomes - employee grievances, disciplinary action, Employment Tribunal applications and employee attitudes.

The Nature and Extent of Disciplinary and Grievance Procedures
Between 2004 and 2011 the proportion of workplaces with written disciplinary procedures increased from 84% to 89%.  During the same period the proportion of workplaces with written grievance procedures increased from 82% to 89%.

More than 4 out of every 5 workplaces had written disciplinary procedures which complied with the three-step approached which had comprised the statutory regulations and which are now the core principles in the ACAS Code of Practice on Disciplinary and Grievance Procedures. (These three key principles are: that the matter should be first put in writing; that a meeting should be held to discuss the issue; and that the employee should have the right to appeal against any decision). However there was less adherence with regards to grievance procedures, with only 46% of British workplaces always applying the three key principles.

When considering the adherence to the three key principles enshrined in the ACAS Code there was a notable difference between disciplinary procedures and grievance procedures. There had been an increase from 73% to 81% of British workplaces applying the three key principles in all disciplinary cases. However, for grievance procedures, only 44% (compared to 42% in 2004) applied all three key principles. The authors considered that the driving force behind increased adherence is external legal factors, rather than structural and workplace level factors.

Written procedures were less likely to be present than in larger organisations. One third of organisations with 5 - 9 employees did not have a written grievance procedure and 31% did not have a written disciplinary procedure. In contrast, for organisations with 10 - 49 employees, only 11% did not have written disciplinary procedures and only 12% did not have written grievance procedures. (As a Workplace Mediator and practising Solicitor, this doesn't surprise me. Certainly I would expect SME's to be less likely than larger organisations to have dedicated HR personnel/departments and/or pro-actively seek advice on written procedures).

There were found to be variations between industry sectors. For instance, 100% of electricity, gas and water businesses, along with financial services and public administration business had written disciplinary and grievance procedures. In contrast only 74% of construction businesses had written disciplinary procedures and 75% of construction businesses had written grievance procedures.

However, having a written set of procedures does not guarantee that these will comply with the three key principles of the ACAS Code. For instance, whilst 100% of the electricity, gas and water companies had a written grievance procedure, only 59% complied with the three key principles of the ACAS Code for grievances.

Organisational size was found to be the key factor associated with having written disciplinary and grievance procedures. Other key factors were the industry sector and whether HR professionals were present. Union recognition (after controlling for size and industry) did not affect the likelihood of having written procedures. However, where procedures were in place, union recognition and HR expertise were positively associated with complying with the ACAS Code in managing disciplinary issues.

The Introduction and Use of Workplace Mediation in British workplaces
There has been an increased emphasis on the use of workplace mediation in the wake of the 2007 Gibbons Review.

Mediation was provided for within 62% of workplace written disciplinary and grievance procedures. However its use was less extensive. Only 7% of all workplaces recorded having used it in the last 12 months to resolve a dispute. However, in workplaces that had experienced employee grievances (being issues potentially amenable to mediation) 17% had turned to mediation. 14% of workplaces that had dealt with disciplinary cases had used mediation. Mediation was more likely to be used in workplaces where written procedures provided for mediation (11%) rather then where mediation was not provided for (3%). Workplace mediation was most likely to be used in workplaces which had written procedures and where those procedures adhered to the three key principles set out in the ACAS Code.

The WERS 2011 showed no relationship between either workplace size and the inclusion of mediation in written discipline or grievance procedures. However, there was found to be a relationship between workplace size and the use of mediation. For workplaces with fewer than 10 employees, workplace mediation was used in 6% of disciplinary and grievance matters. For workplaces with 55 - 99 employees, the percentage was 14%. For workplaces with 500 or more employees, this percentage was 42%. The authors make the point that larger workplaces may have more issues for which mediation may be relevant. However there was no clear relationship with organisation (rather than workplace) size. In terms of industries, mediation was more likely to be used in construction, education and public administration.

More than one in five workplaces that had experienced an increase in disciplinary action had later used workplace mediation compared to 5% in which there had been no change or the incidence of disciplinary sanctions had fallen. The authors noted that the use of mediation may be triggered as a response to rising levels of conflict and the experience of litigation.

Procedure, Process and the Incidence of Individual Employment Disputes

According to WERS 2011, the most frequently cited causes for employee grievances were:
  • Unfair treatment, relations with line managers/supervisors - 39%
  • Pay, terms and conditions - 28%
  • Bullying and harassment - 23%
  • Promotion, job grading and career development - 16%
  • Working time - 15%
  • Physical working conditions, health and safety - 10%
  • Selection for redundancy - 9%
  • Some other grievance - 9%
  • Discrimination - 6%

The most frequently cited causes for disciplinary sanctions in the previous 12 months were:
  • Poor performance - 58%
  • Poor timekeeping or unauthorised absence - 44%
  • Personal use of premises or equipment, theft or dishonesty - 22%
  • Abusive or violent behaviour, bullying or harassment - 19%
  • Disobedience - 16%
  • Health and safety breaches - 13%
  • Alcohol or drug use - 7%
  • Other - 15%

The smallest organisations (with 5-9 employees) had the highest rate of disciplinary sanctions (7.06 per 100) and of Employment Tribunal applications (0.49 per 100). In contrast the lowest rates of disciplinary sanctions (2.72 per 100), dismissals (0.90 per 100) and of Employment Tribunal application (0.02 per 100) were found in organisations employing between 250 and 499 people.

Between the 2004 and 2011 WERS there was a reduction in the rate of dismissals from 1.85 per 100 to 1.23 per 100. There was also a reduction from 9.16 per 100 to 4.73 per 100 in the mean rate of disciplinary sanctions. The proportion of workplaces that experienced formal employee grievances increased from 21% in 2004 to 28% in 2011.

The authors found that there is not a strong association between adherence to the key principles and the level of individual grievances and Employment Tribunal applications. However there was a strong association between adherence and levels of disciplinary sanctions and dismissals. It was concluded, understandably, that managers pay particular attention to procedural and legal compliance when dismissing workers.

One of the arguments in favour of workplace mediation is that if it were used early, it facilitates the resolution of conflicts which would otherwise escalate into full-blown disputes. However the authors' analysis found that workplace mediation was generally associated with higher rates of individual employment disputes.

In cases of disciplinary matters, rates of sanctions and dismissal were higher where workplace mediation had been used. This could be because workplace mediation is more likely to be used in high conflict workplaces or it is being used following disciplinary action as a way of repairing employment relationships. The authors noted that the evidence does not suggest that mediation was being used to deal with disciplinary issues before procedures were enacted, as Gibbons had envisaged.

Further, in cases of grievances, in workplaces where mediation had been used to resolve a dispute, the average rate of grievances was more than 6 times that of workplaces in which mediation had not been used. The authors suggest that this could reflect organisations turning to mediation as a response to high levels of grievances and that the availability of mediation may be part of a climate in which employees feel more able to voice concerns and raise grievances.

The report showed that the mean rate of Employment Tribunal applications in workplaces that have used workplace mediation was significantly higher than those that have not. It is unclear from the data whether the Employment Tribunal cases followed mediation, or whether mediation was used in those cases. The authors consider that this could suggest that the experience of litigation may have encouraged organisations to turn to mediation.

The authors' conclusions included:

1. Written procedures for dealing with individual employment disputes have become more common place;

2. Whilst disciplinary procedures appear to be relatively uniform there is greater variation in grievance procedures. This could reflect the close link between disciplinary procedures and the risk of unfair dismissal, thus providing a greater incentive for employers to adopt more consistent procedures. In contrast, there is greater scope for flexibility in grievance handling, allowing for more negotiation and resolution;

3. Workplace mediation was found to be a potentially important feature of British workplaces, and found that the reach of mediation is greater than previously thought. There is evidence that workplace mediation use is a response to experiencing employment litigation or increased levels of conflict. However the authors found little to suggest that workplace mediation is being used at an early stage to prevent disciplinary and grievance matters entering formal procedures or resulting in litigation;

4. The authors considered that once size and industry differences were controlled for, unionisation has little influence on the incidence of disciplinary sanctions, dismissals and employee grievances; and

5. The authors found no evidence that the presence of procedures and also the use of mediation are accompanied by lower rates of individual employment disputes. The authors found that the most convincing explanation is that organisations that are prone to conflict are more likely to adopt robust procedures and also to use alternative ways of resolving disputes such as workplace mediation.