Disciplinary and grievance issues
- The employee who raises a grievance when faced with disciplinary proceedings.
- When the employee wants a witness present: who takes the statement; who asks them to attend; should they be compelled; who can ask questions of the witness; witness anonymity; which evidence is to be preferred.
- Progressing the disciplinary procedure when an employee goes on sick leave.
- Covert recordings during the hearing.
- What evidence needs to be provided; are statements required?
- Failure to attend and last minute adjournments.
- Who should investigate and/or chair? Manager? HR? Neutral?
1. The employee who raises a grievance when faced with disciplinary proceedings.
The ACAS Code states that: “Where an employee raises a grievance during a disciplinary process the disciplinary process may be temporarily suspended in order to deal with the grievance. Where the grievance and disciplinary cases are related it may be appropriate to deal with both issues concurrently”
Therefore the ACAS Code allows for both options. If the grievance and disciplinary are related it is advisable to deal with them concurrently. If they are unrelated then it is nearly always advisable to pause the disciplinary proceedings and deal with the grievance before resuming the disciplinary. (One exception may be when the disciplinary process is about to be concluded at the point the grievance is raised. In that case the employer could opt to finalise the disciplinary and then deal with the grievance or still pause the disciplinary process to deal with the grievance first.)
An employer should decide which option is appropriate; and that will very much depend on the facts and circumstances.
If an employer took no action at all to investigate a grievance raised during a disciplinary process, it is likely to be a breach of the ACAS Code which will be taken into account when assessing compensation (i.e. it could result in an uplift if the employee brings a claim that is successful).
2. When the employee wants a witness present: who takes the statement; who asks them to attend; should they be compelled; who can ask questions of the witness; witness anonymity; which evidence is to be preferred.
ACAS Code: “The employee should also be given a reasonable opportunity to ask questions, present evidence and call relevant witnesses. They should also be given an opportunity to raise points about any information provided by witnesses. Where an employer or employee intends to call relevant witnesses they should give advance notice that they intend to do this.”
The grievance investigator should take a statement and ask witness/es to attend (if necessary).
Employees who are witnesses could – further to obligations owed to the employer – be compelled to attend if absolutely critical to the disciplinary process. However, the employer should consider whether other evidence will suffice and if there are other options which should be pursued as an alternative (such as the witness giving evidence anonymously (see further below) or the witness being persuaded to attend). In certain cases, forcing an employee to provide witness evidence against their will would amount to constructive dismissal (following a fundamental breach of the implied term of trust and confidence); as ever this is very much fact-sensitive.
The need for the privacy of all individuals concerned (the accused employee and the witnesses) must be emphasised by the investigator and HR. The investigation must be confidential so each witness should not discuss it with anyone else
The witness statements should be signed.
Reluctant witnesses and those who wish to remain anonymous are a common problem. The investigator should explore why the individual wants to remain anonymous. When considering the reasonableness of an employer’s actions and decisions, a Tribunal will consider the investigation and whether (i) the employee knew the case against them; (ii) the employee was given sufficient detail to be able to respond fully and put forward a defence; and (iii) it was necessary for the witness to be anonymous.
In some circumstances the witness’ motives may need to be questioned and corroborating evidence (for the accused and the witness/es) should be sought.
The investigator should question whether the witness has any reason to lie? Does the witness have a bad/good reputation within the company? Does any individual appear to have fabricated evidence (e.g. to exonerate self)? Has the witness had a previous disagreement with the accused employee?
If it is possible to anonymise the witness evidence without causing unfairness to the accused employee, then the witness interview should be conducted as standard and the statement later anonymised (i.e. any information pointing to their identity should be removed subsequently) (Linfood Cash & Carry Limited v Thompson  IRLR 235). Clearly that will be very difficult or impossible in a small company or department.
Corroboration of witness evidence is always desirable. After witness statements have been taken, further investigation may be required to verify or undermine the information given.
At the hearing, the accused employee should be given a reasonable opportunity (potentially with their companion’s assistance) to present their version of events and produce any evidence in support, including calling any relevant witnesses if they have given advance notice of their intention to do so. In addition, they should be allowed to “raise points about” information given by a witness.
If a witness is liable to be intimidated by the accused employee, the investigator can ask the latter to leave for part of the hearing. The companion (or representative) could be allowed to stay.
Non-binding ACAS guidance states that it is good practice to allow the accused employee’s companion to participate as fully as possible in the disciplinary hearing, including by asking questions of witnesses.
As always, if there is a conflict of evidence: One person could be believed over the other. Or the investigator could conclude that it is not clear what happened; and, in that scenario, the accused employee would be given the benefit of the doubt.
3. Progressing the disciplinary procedure when an employee goes on sick leave.
It is not uncommon for an employee to go on sick leave after a disciplinary process has been commenced. This could be due to a condition which existed prior to the disciplinary commencing or as a result of the health strain of going through a disciplinary process.
In this situation the employee should be advised to follow the company’s normal sickness reporting procedure (i.e. notify their manager and/or HR; provide a self-certification and/or doctor’s fit note).
If the employee was suspended from work as part of the disciplinary process: management/HR should consider moving the employee on to company sick pay (or SSP, as relevant) e.g. ending the suspension (temporarily or otherwise) and moving them on to sickness absence. This move can always be reversed should the time come.
With an employee on sickness absence during a disciplinary process, the employer then has to weigh up: dealing with the disciplinary expeditiously (for example where other employees own interests are affected) and dealing with the accused employee who may genuinely not be well enough to attend a hearing or participate in the process.
A related question is whether the employee’s illness – such as anxiety, depression or stress – could have caused or contributed to the alleged disciplinary offence (such as misconduct)? Clearly this may also be true of capability matters (for which a capability or performance management process would ordinarily be followed (rather than a disciplinary process)). If this seems to be a possibility, employers may consider dropping or simply suspending any disciplinary process before assessing the situation using the HSE’s ‘Stress Management Standards’.
If the employee’s absence continues for a significant period of time, the employer may wish to obtain medical advice as to whether the employee is currently fit to attend a disciplinary hearing and, if not, when they are likely to be. This report would have to be undertaken with the employee’s consent – which may have been provided within the employee’s employment contract or may need to be separately requested; if the former, then it is still advisable to seek explicit consent for the current report. Should the employee refuse consent, it may be a misconduct matter (although unlikely to justify dismissal).
The medical report may be obtained from either the employee’s own GP or an independent doctor such as an occupational health (OH) doctor. In the case of a GP, the Access to Medical Reports Act 1988 will need to be complied with. And this may also apply to an OH doctor who has previously treated the employee.
In some circumstances an employee may be described as fit to attend a disciplinary hearing but not fit to return to work. The DWP’s Health and Work Handbook states that: “In these circumstances it is likely that the effects of an unresolved dispute on the employee’s mental health may be greater if the proceedings are postponed. An employee may be unfit for work but fit to engage with the management process. The doctor or nurse will have to assess whether attendance is likely to cause serious deterioration in the employee’s mental or physical health, for example if there is a significant risk of suicide.”. If the individual has severe depression and/or has recently started taking anti-depressants then it may be wise to postpone. In addition, OH may recommend adjustments to the disciplinary process and/or hearing in order to accommodate the employee’s condition.
Eventually, with longer term sickness absence (or a time-critical matter) an employer will have to question whether they hold a disciplinary hearing in the employee’s absence. This would be necessary if OH advise that the employee’s return is not imminent and there is a risk from delaying further – because memories fade or the matter requires an urgent response or other employees (or business partners or clients) are being adversely affected by the delay. In some circumstances it may be appropriate to simply proceed with the hearing without the employee being present; however, alternatives to this include: holding the disciplinary hearing by telephone; holding it at a neutral location; allowing written submissions from the employee; or allowing the employee to attend with a particular companion (e.g. family member or therapist).
4. Covert recordings during the hearing.
Case law has demonstrated that when an employee secretly records a disciplinary hearing or internal meeting with their employer, the recording of any part/s of the meeting where the employee was present may be admissible before an Employment Tribunal. This will be the case if the Tribunal believes the recording is relevant. However, covert recordings of private discussions – for example of the employer’s disciplinary panel during the employee’s absence from the room – will not be admissible on the grounds of public policy other than in exceptional circumstances (such as where discrimination is seemingly uncovered).
From a practical perspective, employers may wish to ensure that their Disciplinary Procedures or Staff Handbook expressly prohibit employees from recording meetings and hearings. Additionally, some employers at the start of an investigatory meeting or disciplinary hearing will inform the employee that they must not record the meeting and ask them to confirm that they are not doing so. These steps may mean that an employee who covertly records might be guilty of misconduct (for which they can be separately disciplined); however, it does not necessarily mean that the recording itself is inadmissible in evidence.
5. What evidence needs to be provided; are statements required?
It would normally be appropriate to provide copies of any written evidence with the disciplinary hearing invitation/notification which may include any witness statements. That may include any witness statements, written evidence (including emails), images, etc. The focus should be on ensuring the employee knows the case against them to the fullest extent reasonable and that they can prepare for the disciplinary hearing.
Employers should bear in mind that employees can obtain further documentation through a Data Subject Access Request (the response to which can be redacted to the extent necessary e.g. to protect other employees’ data) or disclosure in civil or criminal proceedings (e.g. an Employment Tribunal claim).
Case law tells us that an accusation or charge against an employee should be “precisely framed”. An employer cannot ‘charge’ for one reason and later dismiss for another.
The precise level of evidence and range to be provided will always be a very fact-specific question.
The ACAS Code states: “In cases where a period of suspension with pay is considered necessary, this period should be as brief as possible, should be kept under review and it should be made clear that this suspension is not considered a disciplinary action.” Please note that suspension is not a neutral act and the employer will need to show reasonable grounds existed at the time. Inevitably, this involves a balancing of the employee’s and the company’s interests.
In instances of alleged serious or gross misconduct, the employer may wish to suspend the employee while the matter is being investigated. This is likely to be appropriate where there is a potential threat to the business or other employees; or where it is not going to be possible to fully investigate the allegation if the employee remains at work (e.g. because they may tamper with or destroy evidence or attempt to sway or intimidate witnesses).
Suspension can also be advisable where relationships between colleagues have clearly broken down. However, employers should not take any action which demonstrates pre-judging the situation or preferring one employee’s version of events over another’s without strong reason for doing so.
At this stage any suspension should be a paid leave of absence and it should always be for the minimum period necessary. The employee should be advised of the duration of their suspension as soon as possible after their absence commences and they should be updated should it be necessary to extend the suspension.
When the employee is advised of the need for suspension they should be advised (orally and in writing) not to come to work; not to carry out any work; not to contact colleagues (other than HR) or clients – as well as the intended duration of the suspension.
An employer is in a better position if they can rely on a contractual right to suspend. Contracts should be reviewed and revised if they do not include this right.
If an employer does not have reasonable grounds to suspend the employee, they will risk being in breach of the implied term of trust and confidence and bringing about a constructive wrongful and/or unfair dismissal. This is exactly why the employer should only suspend where necessary.
Employers must be consistent in their approach to suspensions across the business to avoid allegations of discrimination on the grounds of any protected characteristic.
7. Failure to attend and last minute adjournments.
The ACAS Code states that employers and employees and their companions should make every effort to attend a disciplinary hearing (paragraph 12).
Employees often seek to postpone disciplinary hearings as a result of illness or lack of availability (of themselves or their specific companion) or because they need more time to consider the case against them and/or gather evidence. As always, the facts will need to be closely considered to determine whether postponement – further to prior or last-minute request – is reasonable. Our advice as regards sickness absence should also be considered here.
If an employee fails to attend the first meeting arranged, it is normally good practice for the employer to rearrange the meeting to an alternative date in order to give the employee a further chance to attend (page 19 of the non-statutory ACAS guide).
Where an employee is persistently unable or unwilling to attend without good cause, the ACAS Code states that the “employer should make a decision on the evidence available” (paragraph 25).
The non-statutory ACAS Guide sets out a number of considerations for employers to weigh up, prior to taking this deciding on a postponement or adjournment, including:
- The seriousness of the disciplinary issue under consideration.
- Any rules the organisation has for dealing with failure to attend disciplinary meetings.
- The employee’s disciplinary record (including current warnings), general work record, work experience, position and length of service.
- Any medical opinion on whether the employee is fit to attend the meeting.
- How similar cases in the past have been dealt with.
The statutory rules with regard to re-arranging hearings where a companion is unable to attend are a little different (i.e. 1 adjournment if a proposed date within 5 days or original hearing is provided). In practice, however, many employers would not make a distinction as to the reason for postponement (i.e. unavailability of the employee or the companion) and would simply agree an alternative time with the employee unless it becomes apparent that the employee is simply stalling.
Employers will rightly be wary of proceeding with the meeting in the employee’s absence without a convincing reason to do so. However, where an employee repeatedly seeks to postpone a rearranged meeting or simply fails to attend without good reason, a decision can in some cases be taken in the employee’s absence. This may not always be sufficient to ensure a fair dismissal. In particular, this is likely to be true if a Tribunal considers that a hearing with the employee present may have resulted in a different decision.
8. Who should investigate and/or chair? Manager? HR? Neutral?
The ideal investigator would be someone more senior than the accused employee; who has knowledge of the type of work the accused carries out in order to contextualise the issue; without bias or the opportunity to be accused of bias. Where technical knowledge is required to understand the accusation – someone with relevant experience should be sought in the first instance.
If there is no one available who fits the bill (or their involvement would cause a major delay e.g. because they are on parental leave) then the nearest approximation should be considered. This can include those working in HR. If the accusation against the employee does not stem from or involve their manager then their manager could be the investigator but regard should be had for the potentially on-going working relationship between the two.
In most cases the employee should be given the opportunity to appeal the disciplinary outcome to someone more senior than the original investigator. That should be considered before the original investigator is selected. Where the accused employee is very senior, the original investigator may need to be at that person’s own level to allow for someone more senior to deal with any appeal.
This publication is intended for general summary guidance. It is not and should not be considered legal advice. Specific advice should be sought for specific cases; we cannot be held responsible for any action (or decision not to take action) made in reliance upon the content of this publication.