Read our article about myth busting grievances for more detail
Does a grievance always have to be in writing?
Should an employer halt disciplinary proceedings where a grievance is raised?
Can an employer can refuse a companion at a grievance hearing?
Myth 1
If an employee submits a grievance during a disciplinary, you must halt proceedings and deal with the grievance first.
Not necessarily! There’s no automatic right for a disciplinary process to be paused if an employee lodges a grievance, but it may often be safer to do so. The best course of action will depend on whether the grievance is related to the disciplinary proceedings or not. In some cases, the grievance is effectively the employee’s defence to the disciplinary issue, so it can be dealt with at the disciplinary hearing. If the grievance is unrelated to the disciplinary process, the two can be run concurrently. But if the grievance raised relates to the disciplinary, or to the impartiality of the disciplinary chair, then you should always deal with the grievance first before coming back to the disciplinary process (if it is still applicable).
Myth 2
Your grievance process is contractual and not following in can result in breach of contract claims
You need to check your policy – ideally you don’t want your grievance (or disciplinary) processes forming part of your contract and you should specify in your policy that they aren’t. However, even if it isn’t contractual, you should still follow your process and the ACAS Code of Practice, otherwise you could find yourself in breach of the implied term of trust and confidence. Failure to follow these processes could also result in a 25% increase in any tribunal claim.
Myth 3
An employer can refuse a colleague or trade union representative as a companion if they feel that the choice of companion is unreasonable
In any formal proceeding, an employee has the right to be accompanied by either a work colleague or a certified trade union representative. The employer doesn’t have the right to say who is or isn’t a reasonable choice provided the companion falls into one of these categories, to do so may be considered a breach of a statutory right. Compensation is capped at two weeks’ pay, but there’s also a huge risk of unfair dismissal in the case of any disciplinary, or constructive unfair dismissal in the case of a grievance. Where an employee requests the presence of a solicitor or a family member, they have no statutory right to this. The employer needs to consider the pros and cons of allowing such representation, before deciding if they will permit it or not.
Myth 4
If an employee goes off sick during a grievance investigation or process, you cannot continue the process
There are some legal risks to continuing (such as breach of trust & confidence or constructive unfair dismissal claims, and discrimination claims), but provided you take practical steps to consider whether proceeding is advisable or not, you can still carry on. Gather information on the absence, keep in touch with the employee, consider any medical evidence, reasonable adjustments and support then make a decision – the more significant the issue under investigation, the more reasonable it will be for you to continue.
Myth 5
Grievances always have to be submitted in writing
An employee does not need to put a complaint in writing for you to consider it a grievance, especially in cases of bullying or harassment. You have a duty of care to your employees and you must investigate this type of allegation, even if it is made by a third party. In addition, harassment is a criminal offence and could become very complex and damaging to your business. Where an employee raises a concern verbally (or in an email) ask them if they would like to proceed on a formal basis and then act accordingly.
Myth 6
Witness Statements cannot be anonymous
It is possible to use anonymous witness statements obtained during a grievance investigation, but it does potentially undermine the employee’s right to challenge the evidence where subsequent disciplinary action is taken. Employers should explore the reasons for the witness wishing to remain anonymous and decide if it is appropriate. Where possible, any evidence given by an anonymous witness should be corroborated by others. You also need to make the witness aware that anonymity cannot be guaranteed – if the case went to tribunal they may be required to attend as a witness.
Do you have questions about grievances?
Give us a call at CUBE HR, we’ll be happy to advise you and we have policies and templates available to meet every HR need.
Why not check out our other blog on the same topic Grievances and how to Deal with them Effectively
You can also watch a range of other videos on our YouTube channel
You can also watch a range of other videos on our YouTube channel
Do you have questions about bullying and harassment?
Give us a call at CUBE HR, we’ll be happy to advise you and we have policies and templates available to meet every HR need.
Why not check out our other blog on the same topic What is Bullying?
You can also watch a range of other videos on our YouTube channel
