It is not unusual for an employee facing disciplinary action to raise a grievance during the process. Sometimes the grievance is a genuine concern about fairness, bias, bullying, discrimination or the evidence being relied on, but it may also have the effect of delaying or complicating the disciplinary timetable. HR should avoid assuming either motive. The key question is whether the grievance affects the fairness of the disciplinary process and, if so, what adjustment is needed.
Start with the policy and the substance of the grievance
HR should first check the employer’s disciplinary and grievance procedures, any contractual provisions, and the relevant ACAS Code or applicable local guidance. The employer should then identify what the grievance is really about. A grievance that is unrelated to the disciplinary allegations may not need to delay the disciplinary process. By contrast, a grievance that challenges the fairness of the investigation, alleges discrimination or bullying connected to the allegations, criticises the decision-maker, or raises concerns about missing or selective evidence may need to be addressed before any disciplinary outcome is reached.
A useful starting point is to categorise the grievance. It may be a complaint about the disciplinary process itself, a complaint about unrelated workplace treatment, part of the employee’s substantive defence, or allegations against other employees which may themselves require investigation. Even where the timing suggests that the grievance may be tactical, HR should avoid prejudging it. The safer course is to assess objectively whether the issues raised are capable of affecting the fairness, evidence base or impartiality of the disciplinary process.
Decide whether to pause, continue, combine or reassign
There is no automatic rule that a disciplinary process must stop if a grievance is raised. The employer should make a reasoned, documented decision. In broad terms, HR has four options:
- pause the disciplinary process while the grievance is investigated;
- continue with the disciplinary and deal with the grievance separately;
- hear both matters together where they are factually intertwined; or
- appoint a different investigator, chair or decision-maker if the grievance casts doubt on the impartiality of someone involved.
A pause is usually the safest option where the grievance could undermine the integrity of the disciplinary process, for example where the employee alleges that the chair is biased, that relevant evidence has been ignored, or that the allegations are tainted by discrimination. However, pausing should not be open-ended. HR should explain the reason for the pause, set a realistic timetable, and keep both processes moving.
HR should also consider how far any pause needs to extend. In some cases, it may be necessary to wait for the grievance outcome before resuming the disciplinary process. In others, it may be fair to continue once the key grievance issues have been investigated, even if a grievance appeal remains outstanding. The decision should be explained, documented and kept under review.
Where the grievance is part of the employee’s defence
If the grievance is, in substance, the employee’s answer to the disciplinary allegations, it will often be sensible to consider the issues together. For example, in a performance case, an employee may say that poor performance was caused by bullying, excessive workload, lack of training or failure to make adjustments. In that situation, separating the processes may be artificial and could lead to inconsistent findings. The disciplinary chair should ensure that the employee has a proper opportunity to put forward the grievance points, that relevant evidence is considered, and that the disciplinary outcome explains how those points were addressed.
Practical steps for HR
- Acknowledge the grievance promptly and confirm how it will be handled.
- Assess whether the grievance is unrelated, overlapping, part of the employee’s defence, or a challenge to the fairness of the disciplinary process.
- Record the reasons for any decision to pause, continue or combine the processes, or to change personnel.
- If the usual procedure is adapted, for example by combining processes or changing the order of steps, explain the reason and give the employee a fair opportunity to comment.
- Where impartiality is questioned, consider appointing a different manager to investigate or decide the disciplinary matter.
- Where the grievance raises credible allegations against other employees, consider whether those matters require a separate investigation, disciplinary process or management action, while ensuring that the original disciplinary decision remains impartial and evidence-based.
- Keep communication clear, confidential and proportionate, and avoid unnecessary delay.
- Ensure the employee has a fair opportunity to respond to the disciplinary allegations and to have the grievance considered.
- Where dismissal is a possible outcome, take particular care that unresolved grievance issues do not undermine the fairness of the decision.
Conclusion
The safest approach is not to treat a grievance as either an automatic brake on the disciplinary process or an irritation to be ignored. HR should make a structured assessment of the relationship between the two processes and choose the route that best protects fairness. A short delay or a change of decision-maker may be preferable to pressing ahead with a process that later appears predetermined, biased or incomplete.
If you would like to discuss any of the issues raised in this article, please contact Ed Henderson or Reshma Derasari, who have conducted investigations for various organisation.