Disciplinary cases can get messy. One accusation of inappropriate behaviour or poor performance is likely to prompt a stung response rather than acceptance. Few people are willing to admit they’re at fault, with no mitigating circumstances at all, not even to themselves.
This leads to huge potential for what looked like a clear disciplinary case to lead to one or more grievances to be raised, for accusations to be met with counter-accusations. It’s soon a snowball running down a hill.
Taking some sensible measures will stop this from happening.
1. Don’t assume it’s malicious
Any grievance claim has to be taken seriously, even when it looks like the employee is only trying to defend themselves against the disciplinary. What if the assumption turns out to be wrong and the lack of response, or lukewarm response, is used as evidence in an employment tribunal? In this situation you need to be even more careful in terms of following processes and keeping records.
2. Deal with both
Technically there’s no legal reason for having to clear up the grievance before the disciplinary can go-ahead. A short postponement of the disciplinary can be a way of showing you’re taking the grievance seriously. But both can - and, if possible, should - be pursued at the same time. An employer needs to be seen to be taking a reasonable position, to be the impartial body following an established system that’s fair to everyone. Sometimes it’s necessary to postpone the disciplinary - if the manager running the disciplinary is alleged to have a bias for example.
3. Investigate properly
It’s important to be clear on any connections between the disciplinary case and the grievance claim. Establishing this early on will save time. And just because there are two related processes going on doesn’t mean it’s okay to skip over any stages in the standard processes for either. Make sure there’s time in the schedule to ensure informed, considered conversations, where no-one is caught on the hop.
4. Use professional support
Investigating conflict and claims of harassment at work is a minefield for HR - a serious threat in terms of the use of time and resources, organisational reputation and working environment. You need to have a clear idea of the potential pitfalls - the dangers of internal investigators who make assumptions about people they think they ‘know all about’; who encourage participants to become defensive; who don’t follow processes - and when it’s time to bring in independent expertise. Mishandled investigations mean the potential for conclusions to be challenged, tribunal appeals, collapsing cases and humiliation.
5. Take the opportunity to firm up processes and response
Challenging situations can be useful for re-focusing attention about the bigger picture of processes, but also culture. Are systems and approaches fair and just, do they lead to the kind of confidence that encourages a victim to come forward? Having a ‘Clear Air’ culture in the workplace is important for supporting good working practices as well as helping minor issues come to the surface and be resolved early. It also acts as a fundamental way to discourage inappropriate behaviour, pressures and secrecy.
About Katherine Graham
Katherine Graham has worked in the field of dispute resolution for over 15 years’ as a mediator and trainer. She has mediated on the BBC Learning Zone and has given keynote speeches on conflict management and mediation for The MOD’s Equal Opportunities Conference, Women in Business Annual conference and “Getting Beyond Conflict”, a national conference on workplace dispute resolution. Katherine joined CMP Resolutions (www.cmpresolutions.com) in 1992. She was made a director of the company in 1998 and became Managing Director in May 2009. Prior to this she managed teams in publishing and communications departments for major national charities including The Work Foundation, the RNID and the King’s Fund. She was the inaugural Chair of the Institute of Conflict Management.