Disciplinary and grievance procedures sit at the heart of most employers’ staff handbooks. Yet while the world of work has evolved, many of these policies have remained untouched. These policies are most effective when they are tailored to the landscape in which they operate, but that landscape has shifted considerably and rapidly over the last few months and years:

• AI: The explosion of AI has brought this technology into our day to day lives, both at work and outside of it. This has brought with it new business risks: confidential information is more vulnerable; users may rely on misinformation; and employers try to establish and enforce acceptable use policies. It has also resulted in an explosion of AI generated grievances, as voluminous documentation can be generated with ease.
• New data / cyber risks: Cyber attacks, with potentially crippling effects, have shot up the risk agenda for many employers. Employers now need to be prepared for those risks coming from within.
• Free speech tensions: Global political and religious tensions increasingly risk spilling over into the workplace. Polarised political discourse around issues such as immigration and gender identity can create flashpoints amongst colleagues with differing views.
• Conflict management: As the employment tribunal delays build to unprecedented levels, resolving conflict in the workplace is increasingly in the interests of all parties.
• Remote working: Although some employers are seeking to buck the trend, remote and hybrid working is here to stay. This impacts on both fostering good working relationships and day to day interactions and also how employers run internal processes like disciplinary and grievance hearings and investigations.
• Reconfiguration of HR services: With a move towards outsourcing and automation, some HR teams are now less equipped to resolve tensions between staff and potentially to manage lengthy disciplinary and grievance processes.  

All of these factors impact on what is relevant and effective in grievance and disciplinary policies.

Disciplinary & grievance policies – why have them?

Although no statute requires employers to have a disciplinary or grievance policy, the law makes it all but compulsory. Employers must include details of any disciplinary rules and grievance procedures in the written statement of employment particulars. But more importantly from a process perspective, the ACAS Code of Practice on Disciplinary and Grievance Procedures must be taken into account by tribunals when deciding relevant employment claims. An unreasonable failure to follow it, whether in relation to a disciplinary or a grievance process, can result in a 25% uplift to a compensation award.

Aside from the ACAS Code, policies are needed to minimise legal risk more generally. A fair dismissal requires a fair process and an effective disciplinary policy can help achieve consistency and good practice on this front. On grievances, the courts have implied a contractual duty on employers to promptly afford employees a reasonable opportunity to seek redress. And where grievances are not effectively addressed, the consequences can be serious: an inadequate grievance process can give rise to constructive dismissal claims if an employee resigns as a result, or even discrimination allegations.

Also, aside from the core requirements of the ACAS Code, there is no one size fits all. A bespoke policy, reflecting the current needs and culture of that organisation, is critical.

How can you adapt your grievance policy for these circumstances?

There are a range of changes that can be made to grievance policies to bring them up to date:

• Address AI generated grievances head on
  We discussed AI-generated grievances in more detail in our article last year, in which we explained how lengthy and legalistic AI-generated grievances are presenting significant challenges to employers. This trend shows no sign of abating and we think that the time has come for employers to address this head on.
  
  There are various potential strategies an employer could address in the grievance policy. A key problem with AI generated grievances is the sheer volume of documents, with complaints often running into tens or even hundreds of pages. A word count limit or even a ban on using AI could address this. Both options, however, are quite blunt tools and would overlook the circumstances in which AI helped employees who may not otherwise be able to articulate themselves, or the cases which truly did require a lengthy complaint.
  
  We think a better approach is to introduce a scoping meeting at an early stage of the grievance process. The idea is that the employee explains and summarises their concerns, enabling their employer to understand the key points of concern. These could potentially be recorded in an issues list to help focus the process going forward. This is a more people-centred approach – interjecting a person-to-person discussion at an early stage before positions and grievance scope become entrenched.
• Manage responsible AI use
  Grievance and disciplinary policies need to reinforce responsible AI use. This may be by cross-referencing other more detailed acceptable use policies or by addressing the issue directly. Using open AI tools such as ChatGPT to generate grievance documentation puts confidential company information at risk and also leaves personal data of individuals referred to in grievances vulnerable. Whilst closed system AI tools operated by the employer may be safer, there are obvious downsides to allowing that technology to be used for personal reasons. These points will come down to both business tolerance and the relevant technology – policies need to be tailored to fit.
• More emphasis on informal resolution
  Whilst the opening sentence of the relevant section of the ACAS Code encourages the informal resolution of grievances, this is often paid lip service in policies. As the employment tribunal backlog is widely recognised as having reached crisis point, workplace resolution of disputes is in the interest of both employer and employee. The formalised grievance process rarely provides a resolution that either party is happy with and can often entrench positions and draw battle lines. Breaking this trajectory with a structured approach to encouraging informal resolution would be a positive change to a grievance process.
  
  The key is to adapt your process to direct employees to a different policy as a first step – a Resolution Policy – aimed at maximising the use of informal solutions as a first step to resolving the concern. Typically, we see complaints arise where two colleagues have fallen out or an employee is unhappy with a performance rating – informal solutions like facilitated conversations or mediations can be far more effective at resolving these complaints at an early stage before anyone has become the enemy.

How can you adapt your disciplinary policy for these circumstances?

The changes set out above, coupled with a general need for modernisation, mean that disciplinary policies may also be ripe for review.

• Review your list of gross misconduct
  
  Many disciplinary policies contain lists of gross misconduct examples that have not been updated for years. For example, “disorderly or indecent conduct” could now more appropriately be labelled as “bullying and harassment”. And although violence in the workplace is clearly something to cover, reminding employees not to “engage in horseplay”  feels a little 1977.
  
  Language aside, the list may also not reflect the issues that are genuinely arising in modern workplaces. For example, covert recording of colleagues and meetings is increasingly common and should be called out. Reiterating the risks flagged above in relation to the acceptable use of AI, unauthorised access to data and confidential information is a growing concern. Harassment and discrimination should also feature prominently, reflecting their seriousness and the legal and reputational risks they carry, whether through social media posts or interactions in the workplace.
• Tailor it appropriately
  As with all policies, tailoring to your specific business is essential. A technology company may need to emphasise data security breaches and IP theft, whilst a client-facing business may focus on conduct that damages client relationships. For those in regulated sectors, such as law or financial services, serious breaches of regulatory requirements or any conduct that would call into question fitness and propriety for the role should feature prominently.
• Review for ERA-readiness
  With the reduction of the unfair dismissal qualifying period from two years to six months, employers are reviewing their probationary periods and approach to managing probation. It’s a good time to reflect on how you deal with misconduct during probation. Would you apply your disciplinary policy? Or would you be more likely to address those concerns through your probation review process, with the employee more likely to “fail” their probation than face a disciplinary hearing. It can be helpful to manage expectations if your policy is explicit about whether it applies during probation.
• Consider whether your disciplinary policy should also address performance
  Some employers combine conduct and performance management within a single disciplinary policy, whilst others maintain separate procedures. But it’s important for employers to remember that they are connected; although performance management may feel quite different from a disciplinary process, a performance improvement process that can build towards a fair dismissal generally needs to follow a progression of formal warnings. This means the process must still meet the applicable procedural requirements.
  
  If your disciplinary policy does address performance, it’s worth reviewing this ahead of the upcoming changes to unfair dismissal law under the Employment Rights Act 2025. With the reduction of the qualifying period from two years to six months, employers will need to think carefully about how performance issues are managed during the early stages of employment. One option is to amend the disciplinary policy to explicitly exclude employees in their first six months from the scope of formal performance management procedures and indicate that performance will instead be addressed through the probation review process. This would generally allow for more flexibility and a shorter process.
  
  It may also be time to consider whether the full performance management process should be applied to senior/very highly paid employees.. The upcoming removal of the cap on the unfair dismissal compensatory award means that agreed exits will be much harder to achieve. This means that some sort of process will need to be considered even for senior employees. However, a performance management process that takes months to progress through will rarely be palatable in these circumstances.
• Adapt for remote and hybrid working?
  With remote and hybrid working now firmly established, disciplinary policies could directly address the practicalities of running processes in this environment by specifying that meetings may be conducted in person or remotely and the logistics for this.
  
  On the other hand, is this really necessary now remote meetings are an everyday reality for office based workforces? An issue many employers are in fact experiencing is a reluctance on the part of employees to attend difficult discussions in person. A policy that is silent on how meetings will be conducted will avoid establishing any expectation that a meeting will or can be remote. Alternatively, an employer may choose to go further and specify that employees must attend meetings in person if required. Again, what is appropriate will depend on the culture and working practices of the organisation.

Time to refresh

Grievance and disciplinary policies are foundational documents that may deserve a bit more TLC than they typically receive. The workplace has evolved significantly in recent years, and policies drafted in a different era may no longer serve their intended purpose. They can also be damaging to workplace relationships by fostering an adversarial culture rather than one that encourages conversation and respect.

There is growing recognition that how workplaces disputes are resolved needs to change. The Employment Lawyers’ Association has recently supported a landmark study and report into employment dispute resolution ('Reimagining Employment Dispute Resolution and Enforcement', by Sarah Fraser Butlin, Catherine Barnard and Maayan Menashe). One of the recommendations of this important book (which we expect to be considered seriously by government departments and policymakers) is that the Acas Code should be amended to make it clear that there is no requirement to follow a formal grievance procedure before bringing a claim to the tribunal, but that parties must make attempts to resolve the issues informally with a potential uplift/reduction in damages for those who make no such attempts.

At Lewis Silkin, we are already offering our clients a route to resolving workplace grievances by maximising the informal stage of the grievance procedure. Our Solutions Pathway focuses on the importance of early conversations, back on track meetings and, where necessary, facilitated discussions or mediations that help those in conflict find a way through the issue. In the vast majority of cases, employees don’t need a “decision” but they do need to be heard and our Solutions Pathway offers a toolkit to train managers and HR teams in the skills needed to mediate employee concerns in a way that leaves employees feeling empowered. If you would like to talk to us about how this could work in your business, please get in touch with Lucy Hendley, who can talk it through with you.