Informal insight

We recently offered advice on formal employment meetings (eg disciplinary and grievance) and their  legal and good practice requirements, but these should only generally happen after informal stage has been tried.

The rules on informal meetings are less clear.  By their very nature, they are intended to be low key with no major decisions being made.  Here we set out some advice on the informal approach.

 

Pre-formal

It is good practice and creates a positive working relationship to give an employee the opportunity to address an issue informally before invoking a more formal process.  It provides the opportunity for a two way conversation so that there is a mutual understanding of perspectives to base a resolution upon:

  • Misconduct

In a conduct matters an informal stage would not be appropriate for issues of serious or gross misconduct, but for low level instances such as lateness or minor breaches of procedure, often pointing out the error results in a swift rectification.

  • Capability

It is generally considered unfair to deal with capability issues (not being able to do the job) away with a dismissal without any prior cautions.  In most cases, there should be an escalation of formal warnings, giving the employee the opportunity to improve their performance at each stage.  Making the employee aware of their underperformance in many cases is enough for them to want to avoid another meeting of such nature.

  • Grievance

Most grievance procedures will begin with an informal stage.  Sometimes it is not appropriate eg serious cases of harassment, but escalating to a formal grievance automatically raises defences and creates conflict. Often matters can be resolved constructively by informally making the other party aware of their impact.

In all of these types of meeting, the issue could simply be down to of a lack of awareness of one or more parties of their impact.  Most people want to come to work to do a good job and co-operate with their colleagues.  If they are made aware that they are not doing so, then they will want to put that right.

Not raising it will just enable the matter to continue.  It shows an acceptance on the side of the employer and the establishment of it becoming normal practice; making the matter much harder to deal with later.  These are definitely matters to be nipped in the bud.

 

Formal/Informal Fuzzy Lines

At a formal meeting such as a disciplinary or grievance hearing, there is the right to be accompanied because major employment decisions are being made here.  There are no particular rights for employees at an informal meeting. It could however be considered a reasonable adjustment to allow an employee with a disability to be accompanied, and sometimes allowing a companion at an informal meeting helps facilitate communication.

Even if a meeting is informal, the employer still needs to maintain the employee’s trust and confidence in them.

An informal meeting is not always appropriate and it the matter may warrant a more formal procedure.  It does however demonstrate reasonableness from the employer if there is an informal step in any proceedings against an employee.

  • Investigation meetings

An investigation is classed as an informal meeting.  No decisions are being made and it is about fact finding only –  typically ahead of a disciplinary or grievance hearing.   If an employee refuses to attend an investigation meeting, this could be seen as a formal conduct matter (potentially refusal to follow a reasonable management instruction) and may be addressed as part of a formal disciplinary hearing based on as much of an investigation that is practicable to the employer.

  • Confidentiality

An employee may make a disclosure about a matter they expressly state they only want to be addressed informally.  It is for the employer to make a judgement on the appropriateness of that wish.  Should an employee disclose a serious matter eg that they are being bullied, the employer has a responsibility and a duty of care to protect all employees from harm (the complainant and other staff that may subsequently be bullied).  So, even if the employee has requested confidentiality and informal meetings only, the employer should be clear not to guarantee this as some circumstances will require investigation and formal action whether the employee wants it or not.

 

Reasonableness

Reasonableness is a word that comes up time and time again in the world of employment.  Even if there are set procedures, the circumstances of the individual need to be taken into account and procedures adjusted accordingly.

Whilst informal meetings are often about fact finding or making other employees aware of minor concerns, they need to be conducted reasonably.

For example:

  • Consider the implications of mediating two conflicting employees
  • Consider whether you have done your bit as an employer to provide training and resources to enable an employee to perform or follow the rules
  • Consider whether you are acting consistently
  • Take into account the employee’s length of service and conduct/performance record
  • Take into account any personal circumstances that may be affecting the employee’s work

 

Good practice informal meeting structure

  • Introduce the meeting, explaining its purpose and the parties in the room
  • Take notes of the meeting and advise when/how these will be available to the employee
  • Work logically through the matter, giving the employee(s) the opportunity to state their side for each part
  • Establish training, resources etc related to the matter that have been provided to the employee, and identify any gaps
  • Agree any actions and note these down with a review date
  • Explain what the next steps are and the implications of the actions not being delivered
  • Provide the employee with a copy of the notes and a letter setting out agreed actions and the implications of not delivering these (likely to be progression to a formal process)
  • Keep a record of the meeting on file to build an evidence trail should the matter progress to a formal level

 

Should you need any advice on conducting formal or informal meetings, do get in touch.

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