Long reads

The ultimate guide to disciplinaries and grievances

13 Dec 2018 By Jo Faragher

Handling grievances and managing disciplinaries remain HR professionals’ biggest workplace worries. Fortunately, help is at hand

The macroeconomic situation shifts so fast it can sometimes seem like the average HR department’s priorities are changing on a daily basis. Is managing a Brexit-related skills crisis more important than embedding a technology-enabled programme of learning? Can the administrative demands of the apprenticeship levy and gender pay reporting be juggled?

And yet, as most HR professionals know only too well, the greatest amount of time and attention often needs to be lavished on the areas of practice it’s all too easy to overlook: the everyday grievances, disciplinary processes and misconduct issues that if not managed correctly can prove corrosive to culture and often be devastatingly expensive.

Analysis of queries raised by CIPD members using the employment law helpline run by Croner backs this assertion, placing grievances and disciplinary issues far ahead of more strategic or nuanced concerns raised by HR professionals. And while, of course, creating a culture where employees speak freely and concerns can be quashed quickly by empowered and enlightened managers is the best way to be able to concentrate on valued-added activities, sometimes what matters is getting things done right. 

Which is why People Management decided to focus on five areas of particular concern for today’s HR professionals – and asked the experts how to stay out of trouble.

Bad management

There is no more frequent flashpoint inside organisations than the quality of management. And when an inexperienced manager comes into an established team, that can be one of the most explosive situations of all. Stephanie Evans, an HR business partner at Effective HRM, says that if the situation isn’t handled properly, formal grievances are often the result, as staff seize on a period of change to jostle for position or agitate.  

“People who have been asked [simply] to do their job say ‘it’s not fair’, that they’re being bullied and egg each other on to file a grievance,” says Evans. “It can feel personal, so we get them to focus on remaining neutral. We hear each grievance, make a decision and move on.” 

The key is to ensure that managers’ reactions to performance and conduct issues within their team are objective, and emotion is removed. “If there’s an argument, tempers can get heated and they might tell someone to ‘get out’ without realising this can count as dismissal, or that if they say the wrong thing it can be tantamount to bullying,” says Brenda Egan, senior employment law consultant at RBS Inform, an HR and employment law support service. 

Offer managers training in skills they will need, such as handling difficult conversations, giving feedback or calling out inappropriate behaviour. Good managers are positive role models, adds Evans: “Most of it falls to how the company expects people to carry out their work – establishing values and giving examples of acceptable behaviour. This sends out a message: ‘this is how we do things around here.’”

The same applies when managers need to mediate between team members. “Sometimes by the time they’ve got HR involved, it’s gone to DEFCON 1, and they need to set a formal disciplinary or grievance process in motion, which feels inhuman and freaks people out,” says Aliya Vigor-Robertson of consultancy Journey HR. “When employees lodge a concern, get managers to ask them questions such as ‘Why do you think that?’, ‘Can you give examples?’, ‘What outcome are you looking for?’. Training managers properly may take time, but it will be less painful in the long run.”

Misconduct

The most thorough policy in the world won’t rule out the occasional incidence of misconduct at work, but it should make it clear what it means. Setting out expectations will help, but ensure employee handbooks also offer examples of what constitutes a misconduct offence and how it will be dealt with. 

Most employers, for example, include a list of actions that amount to gross misconduct in an employee’s contract, and can refer to this should evidence of such a serious incident arise. This will likely differ between organisations and even departments – smoking directly outside the building may not constitute gross misconduct at an accounting firm, but might at a warehouse, for example. Explain that incidents will be investigated and dealt with as part of a formal disciplinary procedure, and that the employer may choose to suspend the employee while an investigation is underway – and in the case of gross misconduct, dismiss as soon as possible. 

Where boundaries can become blurred is when incidents occur outside the office or day-to-day place of work. Whether that’s a fight after too many drinks at the pub or a rant about their manager on social media, employees often mistakenly believe that not being physically ‘at work’ means they’re immune from punishment. Michelle Chance, employment partner at Womble Bond Dickinson, advises employers to make it clear in their policies that if it’s a work event, their employer could be vicariously liable if an employee harasses someone, and that the employee themselves could even be held personally liable.

Bullying and harassment

While there has been considerable media focus on sexual harassment in the workplace thanks to the #MeToo movement, it’s important to remember that harassment between colleagues can take a number of other forms. 

According to the advice team at Croner, there has been a marked increase in employee complaints about bullying and harassment, which employment consultant Matthew Reymes-Cole believes is down to greater awareness among employees of what constitutes unacceptable behaviour.

“Often, these are complex issues where there are a number of incidents that have occurred over a protracted period of time, often years, with numerous different witnesses,” he says. “In terms of HR strategy, the best approach is to try and ensure the incidents do not occur in the first place. Clearly, it is impossible to physically prevent someone from doing something, but there are steps employers can take to minimise the possibility.” 

For starters, ensure there is training on policies, demonstrating expectations around behaviour, rather than hoping people absorb it. 

In the unfortunate event that someone does report an incident, employers should refer those involved back to these policies, advises Robert Maddocks from HRC Law. “This gives you a foundation to work with and will help with any claims in future,” he says. “Speak to each individual and if you can’t resolve things informally, go to the formal process set out in your policy and document what you have done.” Keeping a record of everything is key in accusations of harassment, as there could be a small chance of either side making a claim for discrimination, he adds, and tribunals will want to see that due process has been followed.  

Reducing the likelihood of bullying and harassment claims can be a challenge for HR from a cultural perspective, however, particularly for growing teams. “Lots of organisations have difficulty with the crossover from informality and ‘banter’ to something more negative, unprofessional and dangerous,” says Vigor-Robertson. “Where companies have fewer problems, the leaders tend to model good behaviour.” Looking at the code of conduct during onboarding is a good way to set expectations around mutual respect, she adds. 

Poor performance

As a manager struggling to recruit in a candidates’ market, it can be frustrating when your seemingly perfect hire does not perform to the level you expect. Managing underperformance, particularly and most problematically in the early months in a role, can throw up numerous challenges. Managers are often reluctant to admit they’ve made the wrong hire, for one, or that they’ve mis-sold the reality of the role. 

“Some managers, without HR’s support, sell candidates a dream but it’s not what they expected,” says Nicola Britovsek, HR director at Sodexo Employee and Consumer Engagement. “Set appropriate expectations and be honest if there are challenges.” 

Support managers to deal with performance issues up front, rather than leaving it until a probation meeting or annual appraisal. Are they having regular meetings with the employee to discuss expectations and suggest ways they can reach the expected standard? “The temptation is to let the problem go,” adds Britovsek. “Managers wear a lot of hats, so it’s not uncommon for them to drop some of the balls some of the time. HR can step in to support them to have those conversations.” 

Leaving performance issues to fester or simply ignoring them can have other implications, too. Employees who notch up two years’ service have met the qualifying period to launch tribunal claims for unfair dismissal. “Because managers are often fearful of confrontation, they don’t deal with these individuals and then it goes on past the two-year qualifying period,” says Kate Russell of consultancy Russell HR. Gather evidence or examples of underperformance, she advises. “It’s about standards and how you communicate them. It’s not enough to say ‘you’ve not met the standard’ – you need to spell it out. If this went to tribunal, you’d need to show that the employee knew what they should have been achieving, and that you were clear about what that was.” 

For newer employees, managers can of course choose not to pass their probation or extend the probationary period. Where dialogue and support have not worked with more established staff, they may decide to enter a formal performance management process, which could ultimately end with that person receiving a formal warning or even result in dismissal. 

However, training managers to take a more supportive, ‘coaching’ approach to performance and to broach issues sooner rather than later could avoid this outcome. In all cases, it’s important to talk to the employee and find out what’s caused any underperformance: are personal issues or health concerns affecting how they work, or is their manager treating them unfairly? Often, the underlying aspects of poor performance are less obvious than a manger might assume.

Third-party problems

An increasing number of employers rely on contingent, contractor and freelance workers, and this group of individuals comes with its own set of disciplinary issues. It’s how you handle them that could determine whether a problem escalates. 

“One of the traps employers can fall into is that we call people ‘contractors’ but to all intents and purposes they’re employees,” says Beverley Sunderland, managing director of Crossland Employment Solicitors. “So when there’s a problem, we go through the disciplinary process with them just like anyone else – which in legal terms makes them look more like an employee because we’re exerting control.” 

Control is one of the defining characteristics in employment law of whether someone should be classified as an employee, rather than a worker or self-employed, and could leave employers open to further claims down the line. 

The best advice is to return to the contract you have with the individual, which should set out what process will be followed if there is a conduct issue while they are engaged with your organisation. Sunderland adds that if the person is engaged through a recruitment agency, it is essential to go back to that organisation and present them with details of what’s happened – as they’re technically the employer, it will be up to them to deal with it. 

Whatever the category of worker, setting out expectations is important, especially when it comes to preventing harassment or where there might be anti-bribery or whistleblowing issues. Recent cases have seen employers held vicariously liable for the actions not just of employees but contractors too. In 2017, for example, 126 claimants sought damages against Barclays Bank after a (now deceased) doctor was accused of sexually assaulting people during pre-employment medical examinations. Barclays denied that the doctor was an employee, but the court found that his work was so integrated into the business he could be considered an employee and the bank could be found liable for his actions. 

“It’s not just the legal issues either – there is the potential for adverse publicity and the grievances of employees who may have been affected by the conduct,” Sunderland says. 

On a practical level, producing a crib sheet for contractors that says ‘this is our dress code’ or ‘this is what is expected’ can help to establish expectations around behaviour. And while it can be a difficult balance, encourage managers to challenge poor behaviour or conduct – ignoring the issue simply because someone is not a full employee could mean you need to deal with a much thornier problem in future.

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