Employers have to manage their employees for all sorts of reasons: poor performance, sickness absence or misconduct. These processes can become particularly complicated if something unexpected arises in the process. What can employers do?
Rachel Billen, associate at Browne Jacobson
“I’ve been dealing with a disciplinary issue and now the employee has raised a grievance.”
This tactic is sometimes used to delay an investigation as the employee argues that the grievance needs to be resolved before the disciplinary proceeds. If the grievance is against the person hearing the disciplinary matter, this may be to argue that any subsequent disciplinary decision is biased. It is important that the grievance is looked into; this does not mean the disciplinary process has to stop. Indeed, the ACAS Code of Practice on Disciplinary and Grievance Procedures states that “the disciplinary procedure may be temporarily suspended in order to deal with the grievance”. Where the grievance and disciplinary cases are related, it may be more appropriate to deal with both issues concurrently.
“ I have a pregnant employee. Can I still manage her poor performance?”
Once an employer has been notified of the pregnancy, a risk assessment of the pregnant employee’s workplace must be undertaken in order to identify any potential risks to her health. Account should be taken of any adverse impact the pregnancy may have on performance – this can be explored with the employee during the risk assessment and afterwards. Any performance management process which is ongoing prior to the pregnancy may continue and then be ‘paused’ pending the employee’s return following maternity leave.
“The disciplinary hearing was planned for next week, and now the employee has been signed off sick.”
This can be particularly tricky to handle. It may be a tactic used to try and delay the process but equally, the absence may be genuine. The ACAS Code suggests that the employee should be permitted a fair opportunity to attend, so at least one postponement should be given, but if an employee persistently fails to attend, an employer may conclude the process based on the evidence available to it. Think carefully about whether the illness could be a disability and whether it could have contributed to the conduct. Reasonable adjustments should be made to accommodate the disability when taking the process forward.
Steps you can take now:
Make sure that your policies give you the protection you need;
If in doubt, take advice on your particular circumstances, particularly when dealing with pregnant or disabled employees.
Rachel BillenAssociate, Browne Jacobsonrachel.firstname.lastname@example.org 458737
Source: Devon live