In a world where how an employer handles an internal dispute, be it a disciplinary or grievance, is under scrutiny, it is important to ensure that procedures are not simply a tick box exercise. The duty of care an employer has also extends to how these processes are conducted. It is essential that an employer follows the correct procedures.
Situations may arise when an employer cannot attend a scheduled hearing due to unforeseen circumstances on their part, or an employee has problems securing a companion or trade union representative to attend.
The Employment Tribunals have taken the view that an employer should consider whether a postponement of a disciplinary or grievance meeting is a reasonable option to pursue, even if it means that a hearing may be held more than 5 days after the original hearing date. Should a Employment Tribunal make a finding that there has been a breach of the right to be accompanied, the maximum compensation is two weeks statutory pay that is currently capped at £1,050.
An employer also needs to ensure that a reasonable investigation is carried out. There may be an element of urgency to resolve the matter, but this should not be at the expense of a thorough investigation. A thorough investigation will test the evidence and also allow for clear and specific allegations to be drafted and presented to the employee concerned. An employer should not deviate from the allegations prior to issuing the appropriate sanction.
The matter of being fair throughout the process remains key. The facts may, at times, appear to be very clear; however, an employer’s fairness is demonstrated by listening to both versions of events fully and considering the evidence collated prior to making a decision. Often, some employers have a pre-determined outcome in mind that has been influenced by previous conduct issues, perception in seniority of those affected and the need to progress things quickly. This should be avoided. At times fairness may require a further investigation to be carried out for clarity, and is also acceptable to take more time to reinvestigate an issue. If this is needed, this should be explained to the employees concerned and an updated position regarding timescales provided. Lengthy delays should, however, be avoided wherever possible.
The guidance provided by ACAS is there to protect both parties through the process. As an employer, it is key to remember that where matters escalate to an Employment Tribunal, it has the discretion to award an uplift of compensation of up to 25% of the award for breaches of the ACAS Code of Practice on disciplinary and grievance matters.