We frequently get the question, “How do you handle an employee who has raised a counter grievance during disciplinary proceedings in the workplace?” This is a common occurrence and problem that many employers encounter.
When informed that they are the subject of disciplinary action, many employees respond by filing a counter grievance. This complaint might have anything to do with the actual disciplinary procedure, something else entirely, or any other reasons. Contrary to grievances that are brought up at other times, a counter grievance is frequently brought up to delay the disciplinary procedure.
Many employers struggle with the decision of whether or not to suspend the disciplinary process pending the conclusion of the grievance proceedings. Or could it go on as usual? This issue came up in the recent case of Jinadu v. Docklands Buses, in which an employee who was facing disciplinary action claimed that a manager was out to get her.
The person was fired for serious misconduct and filed a complaint with the employment tribunal for unfair dismissal. The employee had consistently refused to go to a training facility for an evaluation, which would have had an impact on the decision to fire her, thus the employment tribunal dismissed her claim. The employee then filed an appeal with the EAT (Employment Appeal Tribunal), arguing that the employer was obligated to immediately suspend the disciplinary action once she filed a grievance.
The EAT (Employment Appeal Tribunal) rejected the employee’s claim that the disciplinary procedures ought to have been suspended, despite the fact that the employee’s appeal was ultimately successful on a separate legal point.
Employers can learn from this case that they aren’t obligated to immediately suspend the disciplinary processes only because a counter grievance is brought up. Examining the nature of the complaint is crucial, though. It may be claimed that the two could coexist if the grievance is separate from the disciplinary action. However, it would be reasonable for an employer to conduct a more thorough investigation before moving forward with the disciplinary proceedings if there is a concern regarding the actual disciplinary proceedings itself, such as the objectivity of an investigator. The employee has a chance to bring up this issue at a disciplinary hearing, thus there is no need to suspend the process if the grievance is that the disciplinary proceedings are unjustified.
Following a Formal Grievance Process
Employers should follow a formal procedure when an employee files a formal grievance.
- Know your options
- Filing a formal grievance
- Responding to an official grievance
- The hearing for grievances
- Making a decision
- After the grievance process
ACAS Code of Practice
Your company need to have an established grievance process. If not, you must adhere to the disciplinary and grievance procedures outlined in the Acas Code of Practice.
The Acas Code of Practice outlines basic equality standards for managing disciplinary and grievance situations at work and offers practical guidance to employers and employees. Although breaking the Code by itself does not subject an employer or organisation to legal action, any serious violation of its rules will be taken into consideration by an employment tribunal if the case reached that stage.
The Size of the company
Regardless of the size of your company, all employers must follow the complete and fair grievance procedure outlined in this guidance. They should:
- Make sure that they’ll handle grievances in a fair and consistent manner.
- Investigate to gather as much information as you can.
- The employee must be allowed to present a relevant individual in a grievance ‘hearing’, which is a meeting where the employer hears all the facts to reach a final judgement.
- Before making a decision, give everyone a chance to voice their opinion regarding any allegations.
- Take action and make judgements as soon as possible.
- Allow the employee to appeal against the decision of the grievance.
Use Mediation when raising a Grievance
You may use mediation at any point. In order to reach a resolution, all sides must cooperate with an unbiased third party during mediation.
The mediator may come from within or outside of your company. You may be required to pay if they are from outside your organisation.
Do you need assistance?
Experts from the SGT Law firm help companies in resolving personnel management concerns, such as disciplinary actions and investigations. We offer a comprehensive strategy for addressing challenging situations that pose significant legal risks, like vexatious and malicious grievances, in collaboration with our team of HR specialists. Speak to us if you need assistance or advice on your legal options as an employer.