The balance of rights under UK employment law
If an employee is guilty of misconduct, the employer is within its rights to take disciplinary action against that employee. However, during the disciplinary proceedings the employer must also respect the various rights of the employee imposed by employment law.
Where an employer believes an employee may be guilty of misconduct which could lead to them being dismissed, the employer should undertake a thorough investigation in relation to the alleged wrongdoing.
Following this investigation, the employee must be given a chance to state their case and the employer must properly consider the representations made by that employee. Only following this hearing should an employer decide whether that employee is guilty and what sanction should be imposed.
Where an employee brings up a grievance before the disciplinary hearing, the Acas Code of Practice on Disciplinary and Grievance Procedures states the disciplinary process may be suspended to deal with the grievance.
This does not mean that the disciplinary process has to be suspended to hear the grievance – the Acas Code makes it clear that this is at the discretion of the employer.
When an employer is informed of a grievance from an employee who is to be the subject of disciplinary procedures, the employer should consider:
- whether the subject matter of the grievance deals with the same subject matter as the disciplinary hearing;
- whether the grievance involves an issue that the employer was unaware of.
If the subject matter of the grievance is connected to the subject matter of the disciplinary proceedings – eg, if a manager is deliberately trying to cause an issue for a member of staff – the issue should be considered at the disciplinary hearing.
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.
In some situations, where the grievance deals with an issue that the employer was not aware of, the employer may consider whether the employee is simply bringing the issue to light to delay the hearing.
In this situation, an employer should make a decision on whether or not to delay the hearing and should ask the employee to provide them with full information about the grievance in advance of any hearing. If the employee cannot do this, that would normally be a good enough reason not to delay the disciplinary hearing.
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 the case, since both sides will need time to prepare their side of the argument, it may be prudent for the employer to delay the hearing.