Employee raising a grievance during disciplinary proceedings

The balance of rights under UK Employment Law

Currently under UK employment law there exists a fine balance between the rights of an employer and an employee. For example if the employee has committed some more of misconduct then the employer will be perfectly within their rights to take some form of disciplinary action against that employee. However, during the disciplinary proceedings the employer must also respect the various rights of the employee which are imposed by Employment Law.

Situation where an employee brings to the attention of their employer a grievance during disciplinary proceedings

Disciplinary hearing

When must an employer undertake a disciplinary hearing?

In the situation whereby an employer has reason to believe that an employee may be guilty of misconduct which could lead to them being dismissed that employer should undertake a thorough investigation in relation to the wrongdoing.

Following this thorough investigation the employee must be given a chance to state their case and for the employer to properly consider and representations made by that employee. Only following this hearing should an employer take the decision on whether that employee is guilty and what sanction should be imposed.

What happens if an employee brings a grievance to my attention prior to the disciplinary hearing?

The Acas Code of Practice on Disciplinary and Grievance Procedures

When dealing with this kind of issue the Acas Code of Practice on Disciplinary and Grievance Procedures states that the disciplinary process may be suspended in order to deal with the grievance.

Does this mean that the disciplinary process has to be suspended?

This does not mean that the disciplinary process has to be suspended in order to hear out the grievance of the employee. As the Acas Code states that this may be suspended it firmly leaves the decision whether to suspend it to the discretion of the employer.

What issues should be taken into consideration?

When an employer is informed of a grievance from an employee who is to be the subject of disciplinary procedures the following factors should be taken into consideration:

• Whether the subject matter deals with the same subject matter as the disciplinary hearing
•  Whether the grievance involves an issue that the employer was unaware of

The same subject matter

If the subject matter of the grievance is connected to the subject matter of the disciplinary proceedings, such as a manager is deliberately trying to cause an issue for a member of staff then the issue should be considered at the hearing. It would make no sense to consider the issue separately and delay the proceedings for this reason.

What happens if there is no connection?

Even if there is no connection between the grievance and the subject matter of the disciplinary hearing the employer is under no duty to delay the hearing. When coming to a decision on whether or not to delay the hearing the employer should consider how long the delay is likely to be.

Issue that the employer was not aware of

In some situations where the grievance deals with an issue that the employer was not aware of and comes completely out of the blue so to speak the employer may consider the issue of whether the employee is simply bringing the issue to light simply as a means of delaying the hearing.

What should an employer do in this situation?

In this situation an employer should make a decision on whether or not to delay the hearing and should ask the employer to provide them with full information about the grievance in advance of any hearing. If the employee cannot do this or fails to do so then that would normally be sufficient reason not to continue with the claim.

Can an employer decide to combine the disciplinary and grievance procedures?

An employer can decide to combine the disciplinary and grievance procedures. If this is to the case considering that both sides will need time to prepare their individual side of the argument it may be prudent for the employer to delay the hearing.