Tughans LLP on employment law and difficult workplace scenarios.

For May 2024, we have asked the employment team at Tughans LLP to provide practical answers to unusual, sensitive or complex work-related queries. We call this feature “How do I handle it?”

The articles are aimed at HR professionals and other managers who may need to deal, from time to time, with the less commonplace disputes at work; issues that may, if handled incorrectly, lead to claims for discrimination, constructive dismissal or some other serious difficulty.

This month’s problem concerns:

“We are currently engaged in a disciplinary process with an employee for gross misconduct. The employee has submitted a grievance, and management do not see the point in dealing with it when they will be dismissed. How do I handle it?”

Employees often raise grievances during the disciplinary process. This can be a tactical attempt to delay, or even derail the disciplinary process. However, the grievance could reflect a genuine concern about how the disciplinary process is being handled or something entirely unrelated to the disciplinary case. You should keep this in mind when reviewing the grievance, while remaining sensitive to the wider context of the ongoing disciplinary process.

You have an overarching duty to address grievances reasonably and promptly, and conduct disciplinary processes fairly, as part of the duty of trust and confidence which forms an implied term of the contract of employment. When discharging this duty, you should follow the LRA Code of Practice on Disciplinary and Grievance Procedures (“the Code of Practice”). While this Code of Practice is not legally binding, it is best practice, and the Tribunal can increase compensation awarded to successful claimants if it isn’t followed.

This means that you should not ignore the grievance and will have to consider the most appropriate way to deal with it. As a starting point, you should consider the extent to which the employee’s grievance raises issues which overlap with the disciplinary process.

If the grievance case is about an issue which is related to the disciplinary case, the Code of Practice advises that it may be “convenient” to deal with both concurrently. This does not provide much practical guidance and you should carefully consider the individual circumstances. The equivalent guidance in the ACAS Code of Practice is similarly brief. This states that it “may be appropriate” to deal with both cases concurrently if they are related.

If the grievance case concerns the disciplinary process itself, the most appropriate option will usually be to temporarily postpone the disciplinary process while you deal with the grievance. The Code of Practice provides limited guidance on this point but advises that it there may be “situations where the employer may find it more appropriate to suspend the disciplinary procedure for a short period while the grievance is dealt with.”

When making this decision, you should consider the risk that leaving the grievance unresolved would prejudice the fairness of the disciplinary procedure and outcome. For example, the employee may allege that the manager conducting the disciplinary hearing has a conflict of interest, that they are biased or that they have been given incomplete information by others. If the grievance is not resolved first, there is a considerable risk that the employee will bring a claim on the basis that their eventual dismissal was procedurally unfair.

There is no fixed time for how long any postponement should be and this will depend on the circumstances. You should avoid rushing the grievance process and ensure that you conduct a full and fair process in the normal way. On the other hand, you can expect the employee to pursue their grievance actively and participate in hearings; they cannot use the grievance to delay the disciplinary process indefinitely. If you find that the grievance allegations were malicious or not genuine, you can deal with this as an additional disciplinary issue.

Depending on the stage you have reached in the disciplinary process, the employee may be raising issues about an outcome and sanction which has already been imposed. These can usually be dealt with as an appeal under your disciplinary procedure.

If the grievance is entirely unrelated to the disciplinary, it should not be necessary to deal with it first or delay the disciplinary process, and you may be able to reach a disciplinary outcome before the grievance has concluded. It is still best practice to issue the grievance outcome after the employee has been dismissed. This could be the most commercial option if the employee has a history of raising grievances that have not been upheld.

Employers in the public sector may have established policies that deal with these situations and should be followed; these are often much more prescriptive and could have contractual status.

As always, ‘one size does not fit all’ and your approach will depend heavily on the individual circumstances and unfortunately the Code of Practice does not provide detailed guidance or examples. You should ensure that your approach is reasonable and take a pragmatic and considered approach given the wider context of the disciplinary process.

Legal Island Training Resources for Your Staff

Workplace Bullying | eLearning Course

Are you responsible for overseeing the implementation of training for all employees on the new Bullying Code of Practice in your organisation?
Legal Island has created a 45-minute eLearning course for all employees. The provision of this training for your staff will enable your organisation to act in compliance with the Code and help to raise awareness of bullying and harassment in the workplace and explain what to do if employees are concerned.

Click here to view our course on workplace bullying.