I have two employees who refuse to work together, what should I do?
Assuming that neither employee has raised a formal grievance, you should try to resolve the issue informally. The first step will be to sit down with each employee and listen to their concerns. You should not side with either employee at this stage. Having established these concerns you may be in a position to encourage both employees to sit down together, with you present, to openly discuss the issues they have. In many cases this will be enough to clear the air and allow their working relationship to resume, in which case you should keep the situation under review, which may initially include periodic meetings with both employees.
If the issues are not easily resolved or you need to undertake further investigation, you should do this informally and take time to gather relevant information. With this information you may be able to make constructive suggestions to the employees about how they can avoid future disputes.
It may be that your investigations warrant one or both of the employees being invited to a disciplinary meeting because of their conduct. Again you should not favour one employee without good reason. There must be consistency in treatment and, if both employees are found to be at fault, they should both be dealt with appropriately.
Alternatively, you may conclude from your informal investigations that no formal action is needed and that the employees must work together to resolve their differences. If this is the case you should make them aware of the formal grievance procedure, should they wish to progress the matter further. If you do receive a formal grievance then you need to follow your grievance procedure. If both employees raise grievances ensure that you follow a consistent approach, investigate both grievances fully and do not form any preconceived ideas of who is a fault.
If you feel that it would be helpful to vary the employees’ working hours to avoid the employees having to work together then be very careful. This should only be done with the agreement of the parties and should not impact more adversely on one employee than the other.
If a situation has reached an impasse, you may consider using a trained mediator (either an internal or external one*) to liaise between the two employees (with their agreement) to find a way forward for them to work together. Some grievance procedures have this as an option so do check to see if this is the case in your own procedure.
*Trained mediators are available from your HR Rely team: please contact your HR Adviser for more details.
One of my employees is being investigated for gross misconduct and has now filed a grievance of bullying by his manager. The employee admits to making covert recordings of conversations with his manager and has said he will use these as evidence to support his claims. The manager denies the allegations but says he can no longer work with the employee as he has lost trust in the relationship. What should we do now?
First of all you should ask for a copy of the recordings as part of your investigation into the employee’s grievance. You need to suspend the disciplinary process whilst the grievance process takes its course unless the two matters are directly linked in which case you can run the process concurrently.
Whilst the manager may feel affronted by the fact that conversations have been recorded without his knowledge, if the evidence supports the employee’s claims it will be difficult for the manager to complain about this. The recordings would be admissible in an employment tribunal hearing unless the quality of the recordings is too poor to be of any use. For example, in Punjab National Bank (International) Ltd v Gosain [2014] 1 WLUK 57, the Employment Appeal Tribunal dismissed the Bank’s appeal against an employment tribunal’s decision that Ms Gosain’s covert recordings were admissible in evidence. Of course if the employee declines to provide a copy then you are entitled to draw your own conclusions from this.
If you wish to discourage covert recording, it should be made clear in your company rules or handbook or in a specific communications policy that the company does not give permission for recording to take place without explicit consent of the participants. You should ensure that the consequences of doing so are made clear.
Assuming the bullying allegations are not proven, the manager may be justified in stating that he is not able to trust the employee again. This may in itself be grounds for a fair dismissal on the basis of a breach of trust and confidence. However you need to take account of the employee’s reasons for making the recordings in the first place; Had previous complaints been ignored? Was he advised to make the recording to prepare for making a complaint? If the employee’s actions have a reasonable basis it may be unfair to dismiss purely because the manager is aggrieved.
If you do dismiss you should also be mindful that the employee may claim that he has been dismissed for “whistle-blowing” by making a complaint of bullying. Minimise this risk by clearly recording that the dismissal is only due to the covert recordings and not because of the complaint itself (unless the complaint is found to have been made in bad faith).
My employee has brought a grievance and the hearing is set to take place in a week’s time; he has now informed me that he has been to see his GP and has been signed off from work due to stress so cannot attend the meeting. What do I do?
As the Acas guide to discipline and grievances at work acknowledges, the grievance process can be stressful for everyone involved. Furthermore, it is likely that the employee who has raised the grievance will already be stressed, due to the situation that has led to them raising the grievance.
In order to ensure the health and welfare of your employee, it may be appropriate to obtain a medical report from their GP or through your own occupational health provider. This should cover the nature of the employee’s condition, whether they are well enough to attend a grievance hearing, and whether any reasonable adjustments may need to be put in place. On review of this, you should be able to gauge how appropriate it is to continue with the grievance process.
If the medical report confirms that the employee is not fit to continue with the grievance process, it is best to delay the process until he is well enough to participate. It would not be appropriate to continue the grievance process in his absence without having heard his evidence and concerns, as this would likely be viewed as unfair and could lead to a number of employment tribunal claims being issued further down the line.
In the event that the medical report states that the employee can continue with the grievance process, you should gently advise the employee that you plan to proceed.
Note that the employee’s condition could also amount to a disability under the Equality Act 2010; this may be confirmed in any medical report you obtain. In this situation, you must ensure that reasonable adjustments are made if necessary. An example of a reasonable, minor adjustment would be allowing a support worker to attend the grievance with him. However, even if it is not confirmed that he is disabled, it may still be reasonable to provide additional support and/or adjustments to the process, given the employee's stress related condition.
Do I need to disclose documents produced during a grievance procedure if an employee requests them?
Under the UK General Data Protection Regulation, an employee has a right to request to see any data about them which is held on file, whether manually or digitally. In a grievance situation, documentation will likely include witness statements, as well as minutes of hearings and other evidence. Here, you may refuse disclosure of some documentation if to do so would reveal the identity of a third party, unless this person has previously, explicitly consented to the documentation being released without the need for consultation. The Acas guide gives the example of protecting a witness as a situation where withholding information may be appropriate.
Best practice would be to ask for the third party’s consent to disclose the documentation containing their data. If they refuse consent, we would advise that you consider taking steps to anonymise the documentation, e.g. by redaction, rather than automatically refusing to disclose. If you refuse to disclose, inferences may be drawn against you by an employment tribunal. This may also damage your relationship with the employee and breach the implied term of mutual trust and confidence.
With regards to documentation that does not include any third party’s data, this should usually be disclosed to the employee (with the exception of any 'privileged' communications about the grievance, between the company and your legal advisor). If you are unsure whether something should be disclosed, contact your HR Rely advisor.
One of my employees is currently being investigated for misconduct, but has now raised a grievance. I do not believe that her grievance is genuine and think it is just an attempt to delay her disciplinary proceedings. What are my options?
It will rarely be appropriate to take no action at all in relation to the grievance, as this will be a breach of the Acas code, which would be taken into account when assessing compensation in any future employment tribunal proceedings. You should be very cautious about telling the employee that you do not believe their complaint to be genuine, or to refuse to investigate on that basis.
The Acas code states:
“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.”
Therefore, you may either temporarily suspend the disciplinary; or deal with both issues at the same time. In this situation, it is necessary to weigh up your options, bearing in mind the Acas code principle that both disciplinary and grievance issues should be dealt with promptly and without unreasonable delay
The Acas guide provides a number of examples of circumstances in which it may be appropriate to consider suspending the disciplinary procedure to deal with a grievance:
- Where the grievance relates to a conflict of interest that the manager holding the disciplinary hearing is alleged to have.
- Where bias is alleged in the conduct of the disciplinary hearing.
- Where management has been selective with the evidence it has supplied to the manager holding the disciplinary hearing.
- Where there is possible discrimination.
However, in Jinadu v Docklands Buses Ltd EAT/0434/14, the Employment Appeal Tribunal confirmed that an employer is not obliged to put a disciplinary process on hold until the employee’s grievance has been investigated.
Where disciplinary proceedings are already underway, it may make sense to investigate the grievance as part of the disciplinary process (provided that the complaint is in some way related to the disciplinary proceedings, even if loosely). This will save time and ensure that all issues are 'joined up'.
However, if the grievance is totally unrelated to the disciplinary proceedings, it may be wiser to pause the disciplinary process to investigate the grievance. The compliant should be dealt with as promptly as possible to avoid undue delay to the disciplinary proceedings. This may feel frustrating, especially if you believe that the grievance is a tactic to delay the disciplinary proceedings. However, ensuring that the grievance is clearly and fairly addressed may protect you from any arguments of procedural unfairness, or an uplift to compensation, further down the line.
*The uplift can only be applied in certain types of claims, the main ones being unfair dismissal, discrimination and breach of contract. If you would like to know the full extent of claims that may have compensation adjusted due to unreasonable failure to follow the code, your HR Rely advisor will be happy to advise.