I provide HR and general advice to both employers and employees on issues in the workplace including disciplinary matters and grievances.

Disciplinary Issues

All employers should provide their employees with clear guidance as to what kind of conduct is unacceptable in the workplace. This is usually done in a disciplinary procedure, published as part of an employee handbook or online on the employer’s intranet. Unacceptable conduct, also known as misconduct, ranges from relatively minor issues such as poor timekeeping, to more serious issues such as theft or fraud, or sexual harassment or the inappropriate use of IT systems or breach of the company’s policies.  A well drafted disciplinary procedure will stipulate when there are clear grounds for disciplinary action, and what level of disciplinary sanction will be considered for different types of misconduct.

A key requirement for the employer is to act fairly and reasonably within the meaning of the law, and to follow the disciplinary procedure.   

Common problem areas for the employer include:-

• deciding whether or not the employee should be suspended from work to allow a thorough investigation into the alleged misconduct, bearing in mind the employee should normally be suspended from work if the alleged misconduct could result in a dismissal for gross misconduct.

• considering who should conduct the investigation and what the scope of the investigation should be.

• deciding who should conduct the disciplinary hearing and be responsible for issuing a disciplinary penalty, such as a written warning, final written warning or dismissal.

• deciding who should conduct any appeal against the disciplinary outcome and be responsible for upholding or rejecting the appeal.

• considering how best to proceed if the employee is absent from work particularly if this is due to stress, anxiety or depression at any time during the disciplinary process.

To ensure fairness, it will usually be necessary for the person conducing the investigation to pass on the findings to the person conducting the disciplinary hearing who should not have had any prior involvement in the matter.

If the employee appeals against the disciplinary penalty issued to them, then an appeal hearing should be conducted by someone who has no prior involvement in the proceedings and who is more senior than the person who held the disciplinary hearing.

If you are an employee facing disciplinary action, I can advise you throughout the disciplinary process and help you prepare for the various stages. I can also advise you in the event that you decide you would like to try to negotiate a settlement with your employer on the termination of your employment. A settlement agreement is likely to include a short standard reference.

Grievances

An employee who raises a grievance may be unhappy with their line manager and feel that they are being bullied or sidelined or discriminated against.  It may be possible for an initial complaint to be dealt with informally, but if an employee raises a formal grievance in accordance with the employer’s grievance procedure it is important that it is investigated and dealt with promptly, fairly and thoroughly.

An employee who raises a grievance about a significant breach of contract may be doing so as a precursor to resigning and claiming constructive dismissal in the employment tribunal; or to pave the way to trying to negotiate a settlement agreement with their employer on the termination of their employment.  If an employee does make a claim of constructive dismissal, the way the grievance has been dealt with by the employer will be considered by the employment tribunal if the case proceeds to a full hearing.

If you are an employee who is considering raising a grievance, I can advise you throughout the grievance process. If you wish, I can also advise you on negotiating a settlement with your employer.

Sickness absence

Employers need to deal carefully with employees who take time off sick, bearing in mind that they may have a disability within the meaning of the Equality Act.

It may be appropriate to ask the employee for their written consent to apply for a medical report from their GP or consultant and/or make an appointment for them to attend an appointment with an occupational health practitioner.   When the employee is ready to return to work, it is sensible to at least consider offering them a phased return.

In cases where employees have been off work for a year or more and especially where any entitlement to company sick pay or statutory sick pay has expired, employers can often feel that they may be justified in fairly terminating the employee’s employment due to ill health.   In reality this can be difficult to do because the employee may potentially have a terminal illness and may want to retain the option of returning to work in some capacity in order to maintain hope of a return to normality.

The employer needs to be mindful of the disability provisions of the Equality Act which gives added protection to those with a medical condition that constitutes a disability. A disability is defined widely and includes those with physical and mental impairments that have a long term negative effect on the ability to do normal daily activities. It includes those with cancer or multiple sclerosis and can include those with depression.  

Employers need to act particularly carefully when an employee has or may have a disability within the meaning of the Equality Act and ensure that when appropriate, they make reasonable adjustments for the employee concerned.

To discuss your situation please call me 07900 695142