I have dealt with several disciplinary and grievance cases recently.  They have all come from different companies and have arisen from different circumstances, but many of them had one thing in common - difficulties faced by the employer in managing the cases as a result of confused processes.

In many cases where an employer brings a disciplinary or poor performance (capability) case against an employee – however justified, a common response is for the employee to raise a grievance.  This is usually that the employees believe (or claim they believe) that they have been badly or unfairly treated by their manager.  This then complicates things as the employer then has to work out whether this impacts on the original disciplinary case and whether the same person can deal with both matters.

The other common response is to get a sickness certificate from their GP and claim that they are sick with work-related stress.  The GP will have only their side of the story and therefore will usually believe their patient.

Now don’t get me wrong, there are genuine cases of employees being subjected to poor management and who are suffering as a consequence and they should be supported accordingly.  But in many cases, I have seen these tactics used by employees to delay and confuse proceedings deliberately and as a means of trying to trip up the employer so that they make procedural errors.

It is quite clear that managers have a legitimate right to manage, set realistic performance targets, and/ or raise the issue of poor performance with team members.  Just because such a process highlights an employee’s shortcomings, that doesn’t mean that the employee can get away with complaining about their manager because they haven’t delivered the expected level of performance.  The Acas Code of Practice on disciplinary and grievance procedures says 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.”  However, it goes on to say that, “Where the grievance and disciplinary cases are related, it may be appropriate to deal with both issues concurrently.”

This means that the employer should not be frightened of taking a robust approach in dealing with the matters of the case without letting it drag out unnecessarily.  Similarly if the employee has been signed off sick, try getting a medical opinion (either from the employee’s GP or an occupational health practitioner) on whether the employee is fit to attend meetings.  Most employers will have a clause in the contract of employment stating that they have the right to request the employee attends a medical assessment, so this shouldn’t be a problem and will stop the procedures being delayed any further.  If the stress-related illness is genuine, it is often deemed to be in the employee’s interest to get matters resolved promptly to remove any extended period of uncertainty about the outcome of the proceedings.

But some of the biggest procedural problems can arise where you have conflicting procedures – e.g. separate ones for reporting harassment and bullying which aren’t tied into your grievance procedure.  You can then end up arguing as to which procedure you should be following.  Some employers also have far more stages of appeal than are required and if you have a small company, you can quite quickly run out of people to hear the appeals.

So my message is simple:

• Look at your procedures and check that they aren’t unnecessarily complicated and that they don’t conflict with each other;
• Deal with complaints, misconduct or poor performance promptly so that they remain straightforward; and
• Keep good records of any evidence used and hearing notes!

If this is an issue for your company and you’d like some advice on how to deal with it, contact me via www.cheringtonhr.com