Employee grievance under a formal discipline harassment policyPosted in : Seamus Says - Employment Law Discussion on 18 October 2017
Q. If an employee raises a grievance and it's been dealt with under a formal discipline harassment policy, do you still have to follow the grievance procedure with the employee? What do you do?
Seamus: This actually happens quite regularly. So, if you have someone that you are proceeding along a disciplinary line with, it may be that they will bring up a grievance. There's a couple of things you need to take into consideration there. The first is to take the grievance and read it and see what it says. If the grievance has a bite or relates or touches to the disciplinary issues, we would look at the LRA Code of Practice, for instance, and we'd see that there's a recommendation that where it touches or where it forms part of the disciplinary issues, that you would stall and stop and postpone the disciplinary and deal with the grievance.
For the employer, that can be quite frustrating because then they're having people into a whole different set of proceedings and they're dealing with it on a grievance process. They possibly have to deal with an appeal as well and then go back to the disciplinary half. Sometimes for the employer, it can seem as if it is stalling that measure by the employee. But it's important that whatever the issues that touch and relate, that you do take those steps.
Where I think it depends on where exactly you're at and the position you're at, if you're at the investigation stage whenever these allegations are raised on a grievance, it might be very well possible to have a concurrent position whereby you're investigating both and that would be helpful in terms of you could arrive at a clear conclusion in respect of the grievance angle. So, the potential disciplinary allegations and you would be able to move forward without having the delay of the grievance process. But again, it will very much depend on the circumstances.
Scott: Keep an open mind, really.
Seamus: The employer needs to be clear about that and has to treat the employee fairly. The other side of it is that if you have a grievance that arises and is not familiar with the disciplinary process, you would deal with that separately and quite possibly at the same time.
A clear example there would be that if the employee, I've come across this before, the employee alleges that they have been particularly . . . disciplinary things are being brought against them because of a particular reason, i.e. that they have blown the whistle about something in the past or the employer doesn't like them because they've raised an issue on health and safety.
I see a lot of these claims coming whenever the person doesn't have the one-year service to bring a claim on the tribunal. They'll look at health and safety claims or some sort of public interest disclosure claim on the '96 order. It's important in those circumstances that you do pause and you do stop the disciplinary. You deal with the investigation of the grievance, you tie it all up and then you go back to your disciplinary after that. I think from a long style position of looking down the line on the tribunal case that it would be very helpful to have done that rather than try to roll them up together.
Scott: It makes you look fair in the process and allows you to eliminate any potential errors that could be there. If somebody's saying, "I've got new information," it would be silly not to look at it. Down the line, it's going to be held against you.
Seamus: It's similar to someone saying “There's another witness who you haven’t met or investigated with” that's different in terms of its investigation on the disciplinary. But certainly, on the grievance side of things, it's better for the employee to take a clear approach to it. They present themselves as being much fairer in that respect.
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