Managing Discipline Pages
Grievances Raised During the Disciplinary Process
There are occasions where an employee will raise a grievance when they are subject to the disciplinary process. The following guidance is recommended to be followed, in the three scenarios below:-
1) Grievances directly arising from the disciplinary process
The Managing Grievances policy/procedure states that employees are not permitted to raise a grievance concerning any matter directly arising from the application of the disciplinary procedure (either at investigation or disciplinary hearing stage), it being regarded under that procedure as being non-competent. The employee would have the opportunity to raise any related concerns they may have at the appropriate stage in the disciplinary process.
2) Grievances relating to the lead-up to the disciplinary process
An employee may make an allegation about the circumstances that led to the disciplinary process being initiated, rather than concerning a matter directly arising from the disciplinary case itself. This could be for example where an employee alleges that he/she was bullied by the manager who initiated the process. The matter can therefore be heard within the disciplinary process, if this is considered appropriate and depending on the seriousness of the allegation. The allegation would be considered to amount to either a defence to the accusation of misconduct or to a mitigating factor that the employer could take into account when considering what action to take. This may be the most efficient way of dealing with the matter especially where the issues are interrelated. An adjournment may be necessary if any issues required to be looked into in more detail with it being recommended that the same investigating officer is used who looked into the conduct allegations.
Alternatively, the disciplinary process could be postponed for the grievance to be heard and dealt with first. However it should be borne in mind that this could cause an unnecessary delay.
3) Grievances that are unrelated to the discipline case
Grievances that are unrelated to the discipline case should be held out with the disciplinary process and heard through the Managing Grievances procedure as a separate matter. They will not hold up the disciplinary process with no postponement necessary.
Note: Where several grievance issues are raised by an employee these will be analysed and separated out with a decision made on which are related and which are unrelated to the discipline case.
Electronic and Human Surveillance
Data that is held as part of the Council’s computerised systems may be used and considered as part of the disciplinary process as set out in the Council’s ICT Acceptable Use Policy.
As is stated within the procedure for the use of Close Circuit TV (CCTV) the Council operates CCTV systems for a number of reasons. Principally such a system can be installed for the prevention, investigation and detection of crime (particularly, but not restricted to, vandalism or the theft of Council property) and the apprehension and prosecution of offenders. A system may also be used to enhance the safety of staff and the public. Whilst not its principal function, CCTV footage may, in appropriate circumstances, be used in connection with staff discipline.
Criminal Charges / Convictions
Disciplinary action must not be taken against an employee merely because he/she has been charged or convicted of a criminal offence. In such cases, the issue is whether the employee’s conduct merits action because of the implications it may have on their employment.
The need to investigate
Obviously, there is a need to investigate the facts as far as possible, come to a view about them and consider whether the employee’s misconduct is sufficiently serious to warrant invoking the disciplinary procedure.
However, sometimes a matter that needs to be investigated is also being investigated by the police and this may potentially affect the pace at which matters can be progressed.
If this is the case, it is often requested by the police (and sometimes the employee) that internal proceedings are suspended until the outcome of the police case. This, of course, can be costly as the employee may be suspended on full pay and the police investigation may take some time.
However, to proceed with an internal investigation may prejudice the outcome of the case so you must carefully consider whether it would be fair and reasonable to do so. Obviously, you should co-operate with the police as much as possible and be prepared to accept some delay if your questioning would alert someone before a police statement is taken.
Apart from the above, it is difficult to see how internal proceedings would prejudice the outcome of the case, especially as the investigations are separate and based on different concepts – especially the burden of proof.
Where the employee’s conduct requires prompt attention, and where there is any real danger of prejudicing the case, you should not await the outcome of the police investigation or prosecution before taking fair and reasonable action. Where this is the case, there is no need to automatically grant a request from the police to delay progressing a disciplinary investigation.
The same is true if an employee requests that internal proceedings should await the outcome of the police case. You should consider this, but again, you must be satisfied that there is a real danger of prejudice and not merely a notional one.
If you are in any doubt about whether to commence an internal investigation whilst a police investigation is underway, then contact People and Organisation or Legal Services for advice.
Where the police are called in to investigate they should not be asked to investigate on behalf of the employer, nor should they be present at any investigatory meeting or disciplinary hearing.
What if it is not possible to establish the facts?
There may be occasions however, when the only substantial evidence is held by the police, which will not be disclosed unless, or until, the case comes to court. In such cases, any disciplinary proceedings will have to await the outcome of the police case.
You may be concerned that if you proceed and take disciplinary action, including perhaps dismissal, and the employee is subsequently found not guilty in the criminal case, the decision will be held to be unfair. In fact that should not be a worry. As long as the disciplinary procedure was properly followed, that the manager who took the decision had a genuine belief that the employee was guilty of misconduct, that they held that belief on reasonable grounds and have reached that belief after a reasonable investigation then it is likely that the decision will be considered fair. An Employment Tribunal will not be concerned whether the complainant was guilty of the crime, but whether the employer acted reasonably on the evidence available.
What if the employee refuses to co-operate?
Where an employee, charged with or convicted of a criminal offence, refuses to co-operate with the internal disciplinary investigations and proceedings, this should not deter you from taking action. Where this occurs, the employee will need to be advised in writing that unless they take the opportunity to provide further information, a disciplinary decision will be taken on the basis of the available information and could result in dismissal.
What if the employee is in custody or on remand?
There may be occasions where the employee is not available for work because he/she is in custody or on remand. In these cases, you will need to decide whether, on the basis of the needs of the service, the employee’s job can be held open. If it is not reasonable to in terms of service requirements then it is possible to terminate the contract by reason of “frustration of contract”. No dismissal takes place in such cases. The length of the absence will be a determining factor here, particularly where there is little likelihood of an employee returning to employment.
The doctrine of “frustration” is normally accepted by the courts only where the employee’s “absence” renders all performance of the employment contract clearly impossible.
What if the employee has become “unacceptable” to colleagues?
An employee who has been charged with, or convicted of, a criminal offence may potentially become unacceptable to colleagues resulting in pressures from those colleagues to dismiss the employee. This may even result in threats of industrial action. This could well be the case depending on the nature of the charge or conviction.
However, before bowing to workforce pressure, you need to bear in mind that you will have to justify the reasonableness of any decision to dismiss and consider all relevant factors before reaching such a decision. An employment tribunal will expect no less and will not take into account threats of industrial action when determining the fairness of a decision.
What if the criminal conviction makes it illegal for the employee to continue in their job?
Where a criminal conviction leads, for example, to the loss of a driving licence which would make the employee’s continued employment in that job illegal, you will need to consider whether suitable alternative work is available before taking a decision to dismiss. Disqualification from driving for a period of one year or more, where driving is the main task of the job, will normally result in dismissal on the grounds of capability.
Resignations during the disciplinary process
You cannot legally force the employee to continue in employment beyond the notice period for whatever reason. Therefore, you cannot technically refuse to accept the employee’s resignation.
Implications for the disciplinary process
If an employee hands in their notice, the disciplinary process should continue until they leave (as practically possible). Once they have left the process stops unless this is an investigation where the employee has a professional registration or is a PVG scheme member.
Where the allegations have been refuted and/or where constructive dismissal has been claimed:
When acknowledging receipt of the letter the individual should:
- be assured the action taken so far is in accordance with agreed procedures
- be assured that the allegations will be fully investigated to establish whether they are founded
- be given the opportunity to rescind their resignation to allow them the opportunity to state their case and in effect prove that the allegations are false. There is a template letter for this below:
Employment in certain professions, which are regulated by statutory bodies is of course conditional upon continuing registration (for example teachers, social workers, solicitors). The Investigating Officer should check whether the employee under investigation is required to be registered with a statutory body. If this is the case they should refer to the Codes of Conduct pertaining to their employment as part of their investigation.
Employers have a duty to report any incidents of professional misconduct to the appropriate registration authority. This duty is separate from any disciplinary action taken, and as with criminal charges, you do not need to await the outcome of any separate investigation which the registration authority carries out before applying the disciplinary procedure.
In cases where the outcome of the internal disciplinary process results in action short of dismissal, and the registration authority subsequently determines that the employee’s registration is suspended or removed, you will need to consider whether suitable alternative work is available before taking a decision to dismiss. Subsequent removal from the registered body will be dealt with as a further case and dismissal will be an option.
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