At Jaluch we often find that those newly appointed as supervisors or managers feel somewhat out of their depth when it comes to dealing with a disciplinary or grievance situation. Perhaps your managers were trained up a few years ago, but where does that leave those who have only recently been appointed? Or perhaps you have never trained up your managers at all?
In an ideal world, you will be calling us to book a one-day training course for managers to give them both knowledge and confidence to deal with challenging people issues. But we don’t live in an ideal world so until you are ready to pick up the phone to us to book some training in, here is some guidance that we recommend you copy/circulate to your line managers.
Don’t ignore a grievance just because it hasn’t been put in writing
Many managers fall into a trap of ignoring grievances because they haven’t been put in writing. Even if your policy requires individuals to put their grievances in writing, employees will still have an expectation and legal right to have complaints dealt with appropriately – in writing or not. This means that managers cannot just dismiss a complaint just because it is not written down.
The benefits of early intervention with complaints/grievances
Whilst it might seem to be a frustrating distraction when you are already busy, addressing an issue early often helps to resolve a problem before it grows arms and legs. The earlier the better in our opinion.
Heading things off ‘at the pass’ can also reduce the likelihood of a small issue ever being formalised into a grievance.
In extreme circumstances, employers who choose to ignore or stick their head in the sand over serious issues might, as a result, find themselves then dealing with a constructive dismissal or discrimination claim, both of which will be costly in respect of both legal fees and possible compensation.
When is a warning not a warning?
Despite this often being seen on TV, you cannot just call someone to account and send them off with a flea in their ear, being told they now have a warning on file. This kind of warning is simply not recognised in law.
There is a process to follow and usually that will be set out in your own organisation’s disciplinary procedure. Any warning issued outside of this procedure is likely to be considered null and void should it be tested in law.
So if a flea in the ear is insufficient, what do I need to do?
You cannot ‘issue’ any form of warning (unless it is part of an informal process) unless you have:
- Undertaken some form of investigation (this can be as simple as a summary of events).
- Invited the employee to a meeting (with the allegations clearly stated).
- Given the right to be represented by a colleague or trade union rep.
- Presented the employee with the facts of the case.
- Given them a chance to provide their version of events or provide mitigation.
Only then can a ‘warning’ be issued (even if it is only a verbal warning). The employee must also be provided with the right to appeal any sanction (within a given time-frame and usually 5 days).
As their manager, can I chair the disciplinary hearing?
It is best practice (and shows impartiality) to appoint an independent person to chair the disciplinary hearing – someone who has not been involved in the disciplinary issue to date.
This independent person, after the hearing, will review the facts of the case and decide on the level of disciplinary sanction (verbal or written warning, dismissal, demotion).
Of course in small organisations and occasionally in much larger organisations this may not always be possible, in which case you might consider appointing an external person to assist, especially where impartiality is considered critical.
Don’t mix up a disciplinary investigation with a disciplinary hearing
These are two separate processes.
The purpose of an investigation is to fully investigate the facts of an issue BEFORE deciding if the issue warrants consideration (‘that there is a case to answer’) at a disciplinary hearing. Sometimes an investigation will be concluded and a decision made NOT to proceed into a disciplinary hearing.
The investigation can be long and complex but equally is often as simple as having an initial meeting with the individual (and any witnesses) to establish the facts, e.g. reasons for poor timekeeping/explanation of a conduct issue and gathering data and evidence from witnesses. Your HR Department should be able to support you with the approach you take with the investigation.
Right to be Accompanied
There is no statutory right to be accompanied at a disciplinary investigation meeting, this only extends to the Disciplinary Hearing.
The right to be accompanied at a disciplinary hearing applies from day one of employment.
Under Section 10 of the Employment Rights Act (1999) the person who accompanies your employee can only be a Trade Union representative (who should have received training in acting as a worker’s companion) OR another of the employees workers.
There is no right to be accompanied by a third party (or lawyer!)
However, managers should also apply logic and common sense and above all ‘reasonableness’ if a request falls outside of these guidelines, particularly when dealing with employees who may have a disability. Allowing a family member to support in these circumstances may be likely to benefit both parties.
Please note though that your own disciplinary policy may allow employees to be accompanied at an investigation meeting, so check your own policy.
Be mindful of treating non-employees (e.g. ‘workers’) as if they were employees
Be very careful not to invite any non-employees to any disciplinary or grievance hearing, treating them as though they are employees. They are not. Ideally your organisation will have separate or modified procedures for ‘workers’. If issues relate to agency workers ensure the Agency is involved in any investigations or disciplinary action
To maintain the appropriate employment status, keep a clear distinction between your different types of staff and ensure your paperwork trail supports this.
If you need support on this please do get in touch. We have checklists which can help you determine employment status.
Who is managing who?
Be mindful of employees who try to take over the process and deliberately cause delay whilst you are trying to manage them. You need to remember you are the manager and this is your process.
Examples of this might be an employee going off sick (often with stress) when they are facing disciplinary action, or raising a grievance in the middle of a disciplinary investigation.
Don’t let matters slip and slide out of your control.
If this employee ever brings a Tribunal Claim the Judge will look to see if you acted ‘reasonably’. So be considerate of their needs where you can but do not allow them to take over the procedure and start dictating how they will be managed – which is mostly not at all!
Whilst you need to be mindful of investigating any grievances, you might find that the disciplinary and grievance can be managed concurrently to avoid delay. Also, an employee off sick with stress due to facing disciplinary action is likely to get more stressed the longer the delay, so consider when its best to step in to push your meeting forward, despite their ongoing claim of stress. An easy way to deal with this is to offer them the right to submit written representations rather than attend in person.
If you have any questions about this or would like further support from Jaluch please do contact us.
We have both ad-hoc and monthly retainer/subscription options for HR advice – telephone support, template documents and face-to-face support and advice on all people issues.
Where its sensible, please do ask us about chairing disciplinary investigations, hearing or grievance meetings too. And our support doesn’t stop there as we provide commercial support with any Tribunal Claims you might receive.
To see our options around training and development of line managers.
And if you can’t find what you’re looking for, please do get in touch and let us know as our website is always a work in progress!