Hot Topic: Grievance Raised During Investigation or Disciplinary Proceedings: Key Considerations

Hot Topic: Grievance Raised During Investigation or Disciplinary Proceedings: Key Considerations

Hot Topic: Grievance Raised During Investigation or Disciplinary Proceedings: Key Considerations

 A scenario which often arises for employers during the course of an investigation or disciplinary process is that an employee raises a grievance, either in relation to the process itself or in relation to some other related or unrelated matter and an employer must determine how best to handle this grievance. In this Hot Topics article, Emer O’Sullivan from Crowley Solicitors considers some practical considerations for employers in this scenario.

The first step is for employers to look to their grievance and disciplinary procedure for guidance regarding the policy and custom and practice approach to this issue.

The Industrial Relations Act, 1990 (Code of Practice on Grievance and Disciplinary Procedures) (Declaration) Order, 2000 (Statutory Instrument No. 146 of 2000) sets out some general guidelines on the application of grievance and disciplinary procedures and the promotion of best practice. However it is silent in relation to how to manage a situation where a grievance is raised by an employee during the course of an investigation or disciplinary process.

UK Position

In the absence of any Irish guidance, it is helpful to look at the UK position for some guidance on best practice. The ACAS Code of Practice 2009, upon which UK employers are recommended to model their disciplinary and grievance procedures, does provide some (albeit limited) guidance on what to do in a similar situation in Ireland. It states, at section 46:

“Overlapping grievance and disciplinary cases

 Where an employee raises a grievance during a disciplinary process the disciplinary process may be temporarily suspended in order to deal with the grievance. Where the grievance and disciplinary cases are related it may be appropriate to deal with both issues concurrently”.

 It is clear from the use of the word ‘may’ that there is no obligation on UK employers to suspend the disciplinary procedure, and rather an employer can exercise their discretion. There is no legal requirement on to suspend a disciplinary process if a grievance has been raised.

It is clear from the UK guidance that it may be appropriate in circumstances where the subject of the grievance and the disciplinary matters are related (but do not raise any point in respect of fair procedures) to have them dealt with concurrently. It addition, the implication from the guidance in the UK is that if the grievance raised does not relate to the investigation or disciplinary process in any way, that the grievance process can run in parallel to the investigation or disciplinary process. However if the grievance relates to the process of the disciplinary procedure and it could threaten the integrity of the disciplinary procedure, the employer should consider whether it is appropriate for the disciplinary procedure to be suspended for a short period of time so that the grievance can be considered.

In terms of when a grievance raised in respect of fair procedures may require an employer to consider suspending the disciplinary process, the 2009 ACAS Guide (which accompanied the Code of Practice) gives some examples of this, including:

  • Where the grievance raised relates to a conflict of interest which the manager conducting the disciplinary meeting allegedly has;
  • Where the grievance alleges bias in the conduct of the disciplinary meeting;
  • Where there is possible discrimination.

There are other issues which may be raised by employees over the course of a disciplinary process including that they have not been provided with all relevant documents or they have not been shown witness statements being relied upon by management. Such issues can be resolved by providing the employee with the documents in question and do not require the suspension of the disciplinary proceedings.

While the UK Code of Practice does not bind Irish employers, in the absence of any Irish legislative or caselaw guidance on the subject, it is a useful guidance tool.

Irish Best Practice

Taking the best practice guidelines above and applying it to Ireland, in addition to the obligation of employers to comply with the principles of natural justice and fair procedures, the following is the general recommended course of action in a situation where an employee who is the subject of a disciplinary procedure raises a grievance:

  • If the grievance relates to the subject matter of the ongoing disciplinary proceedings, the employee could be advised that as their complaint relates to a matter currently under investigation it should be raised within the framework of that investigation, and the issues could be investigated concurrently, provided the grievance in no way relates to the process of the investigation. In such circumstances, the investigation report could make findings on both the grievance and the disciplinary procedures. This should be considered on a case by case basis to ensure that this is appropriate in the circumstances.
  • Generally if the grievance relates to procedure used during the process, then an employer should consider whether it is appropriate in the circumstances to suspend the disciplinary procedure pending a grievance investigation to avoid any question that the employee was not afforded fair procedures.
  • If the grievance does not relate to the subject matter of the disciplinary proceedings, then the employee should be informed that his grievance will be investigated in the ordinary way in accordance with the employer’s grievance procedure. This can run parallel to the disciplinary procedure. The grievance procedure should be dealt with by a party who has no involvement with the disciplinary procedures. The employee, as always, is entitled to appeal the findings made on his grievance. In such a scenario it is perfectly in order for the employer to continue with the investigation, and it may also proceed with a grievance process in parallel.

In general it is not necessary for an employer to suspend an ongoing investigation process pending the completion of a grievance investigation.

It is important for employers when considering the best approach to ensure that there is no clause in the disciplinary and grievance procedure which may prevent them in acting in their preferred manner, e.g. a standstill clause which requires an employer to adjourn any disciplinary proceedings until the outcome of the grievance and, if necessary, the appeal from the grievance decision.

In the UK case of Samuel Smith Ltd v Marshall (UKEAT/0488/09) the UK EAT held that as there was no standstill clause in the disciplinary and grievance procedure requiring the employer to adjourn the disciplinary hearing until after the grievance had been dealt with, and in this particular case the employee had refused to agree six dates which were offered to him for a disciplinary hearing, that the Employment Tribunal had erred in law in holding that any reasonable employer would have suspended the disciplinary hearing until the outcome of the grievance appeal. In this case, the grievance in question had already been heard by the time of the disciplinary hearing and in the EAT’s view this made the employer’s case stronger. It held that it was “perverse to find that a reasonable employer would have been bound to have adjourned the disciplinary hearing for the reasons already submitted; there was no contractual right to a standstill … the adjournment of the disciplinary hearing and failure on the part of the Claimants to agree some six dates between 20 March and 14 April.”

 While each scenario should be considered on an individual basis and specific advice should be taken on a case by case basis, unless the grievance raised relates to the process of the disciplinary procedure, it is possible for a grievance and disciplinary process to run in parallel.

The key take home point is to carefully review the wording of your organisation’s policies in relation to grievance and disciplinary procedures to ensure that the wording in no way limits your organisation in exercising its discretion in a reasonable manner.

For further information on any issue raised in this article please contact Deirdre Crowley at dcrowley@crowleysolicitors.ie.

This article is a general summary of the subject and is not intended to be a thorough review or a complete statement of the law. Specific legal advice should be sought on a case by case basis.

 

 

 

 

 

 

2018-01-31T12:12:54+01:00