Top tips for employers: How to manage delays in disciplinary processes

This is the second article in our 2021 Tricky Issues Series. We will be looking at the five most common causes of delays in disciplinary processes, including the topical issue of delays relating to Covid-19, and how employers can best manage them.

1) Employees raising a grievance

It is not uncommon for employees to raise a grievance while they are going through a disciplinary process and it can be difficult to decide how to proceed in such cases, particularly if there is a suspicion that the employee has tactically raised a grievance in order to attempt to delay the disciplinary process. In this situation, employers will need to consider if it would be appropriate to delay the process in order to deal with the grievance first or whether the grievance and disciplinary can be dealt with concurrently.

The decision is entirely at the employer’s discretion and there is no obligation to put the disciplinary process on hold to deal with a grievance. If the grievance and disciplinary relate to the same issues (but without the prejudicial concerns that are highlighted below), it could be appropriate to run the processes at the same time. When dealing with the matters concurrently, employers should still keep the procedures separate so that one outcome cannot be deemed to influence the other.

The ACAS Code of Practice on Disciplinary and Grievance Procedures (the “Code”) provides some examples of when it might be appropriate to delay proceedings:

• where the grievance relates to a potential conflict of interest of the disciplinary manager;
• where bias has been alleged in the conduct of the disciplinary hearing;
• where it has been alleged that the evidence provided by the investigating manager has been selectively supplied to the disciplinary manager; or
• where there is possible discrimination.

If any such issues are raised, it would be advisable to temporarily suspend the disciplinary process to deal with the grievance first. In which case, employers will also want to clearly communicate that the disciplinary process has been put on pause whilst those matters are considered. This gives the opportunity for employers to make changes to the investigation process or disciplinary panel as appropriate should the grievances be well-founded.

In any case, employers should give due consideration to any grievances raised during a disciplinary process (particularly where dismissal is a possible outcome) in order to avoid claims for unfair dismissal due to procedural unfairness.

2) Non-attendance by employees to meetings

Another common cause of delay is employees not attending or otherwise seeking to postpone meetings. This could be for a whole host of reasons including prior commitments, ill-health or that the employee’s chosen companion is unable to attend. Depending on the reason given for non-attendance or postponement, employers may wish to be flexible and re-arrange meetings where possible so that the employee has the best chance of being able to attend. We discuss dealing with sickness absence in more detail below.

If an employee is persistently unable or unwilling to attend a disciplinary meeting without good reason, then employers may be able to proceed to make a decision in the employee’s absence on the evidence available. The outcome should then be communicated to the employee in writing. Employers should, however, make sure that they have a clear paper trail of their various attempts to engage with the employee to get them to attend a disciplinary meeting, to demonstrate flexibility and ultimately to show that they have warned the employee that a decision will be made in their absence.

3) The employee’s companion is unavailable

In some cases, delays can be caused by the employee’s chosen companion being unavailable to attend a scheduled meeting or hearing. In which case, if:

• the employee does have the right to be accompanied at the hearing,
• the companion is unavailable at the time or date proposed by the employee; and
• the employee has proposed an alternative time which is both reasonable and falls before the end of the period of five working days (starting the day after the employer’s proposed date),

then the employer must postpone the meeting until the proposed alternative time or date. If the employee is disabled, it could in certain circumstances be a reasonable adjustment to postpone the meeting further than this.

4) Employees on sick leave during the process

Disciplinary processes are often delayed where employees take a leave of sickness absence. The sickness may be unrelated to the disciplinary process, but it is not uncommon for employees to take a leave of absence relating to stress or anxiety arising from the process itself. Employers should be aware that, depending on the circumstances, the disciplinary process does not have to be indefinitely paused in all cases of sickness absence.

Employers may make a referral to occupational health or otherwise obtain medical advice to confirm whether the employee is fit to attend a meeting. In some cases, an employee may not be fit to work in their specific role but may be fit enough to attend a disciplinary meeting and a doctor may also advise that it would be beneficial for the employee not to delay proceedings in order to, for example, resolve the source of the anxiety.

Employers will of course want to be considerate of the employee’s welfare and consider any potential adjustments that could be made to facilitate the process. For example, the employee may prefer to nominate someone to communicate with the disciplinary manager, or for a meeting to be held in a different location or via video conferencing. Where appropriate, employers could also invite the employee to provide written representations instead of providing evidence in-person.

Clear and ongoing communication is essential. Employers should also ensure that employees understand that the disciplinary process will continue where reasonably possible during their absence or otherwise without delay on their return.

5) Covid-19 pandemic related delays

Due to the current lockdown and new ways of working, employers may need to be flexible with how they carry out disciplinary meetings. Where a face-to-face meeting is not possible, employers might consider conducting any meetings via video conferencing software. Before proceeding on that basis, employers should make sure that the employee (and their companion) have access to the necessary software and internet connection necessary.

Alternatively, if it would be appropriate to do so, a simple telephone call (with a note taker) may be possible where video conferencing is not available (though keep in mind the logistics of how this would work without being able to screen share any images or documents being relied on as evidence).

In some cases, employees have resisted the idea of video conferencing with concerns that it might somehow disadvantage them. This could be a tactical attempt to delay the process or it could be a genuine concern for those unfamiliar with using video conferencing software. In any case, employers should first consider that individual’s circumstances and concerns to see if they can be addressed.

If the employee is currently on furlough leave, we consider that they can still take part in investigations and attend disciplinary hearings as long as public health guidelines and the Coronavirus Job Retention Scheme (“CJRS”) rules are followed. The CJRS rules will be complied with during disciplinary processes as furloughed employees will not be carrying out any work that provides services to, or generates revenue for, or on behalf of, the employer. Additionally, union and/or employee representatives are permitted to carry out duties associated with that representative role whilst on furlough. In these circumstances, employers should agree the best way to communicate with the employee (and their companion) whilst on furlough leave in order to keep the process moving.