Case Study One
An example of how an invite to attend a disciplinary can result in a grievance, then a resignation and a possible constructive dismissal claim.
On 8th November 2007 our client’s Operations Manager invited an employee to attend a disciplinary hearing for alleged insubordination because the employee had terminated a telephone call between himself and the Manager by hanging up the telephone. The telephone conversation had been about working arrangements for the forthcoming week.
The disciplinary hearing was scheduled for 12th November 2007 at 9.00 am. On this day the employee submitted a 5-page grievance letter to the MD which, among other things, accused the Operations Manager of bullying and harassment.
We advised our client to suspend the disciplinary hearing and commence an investigation into the grievance. In line with the statutory grievance procedures our client arranged a grievance meeting with the employee so that they could formally discuss their grievance. The grievance meeting was held on 3rd December 2007 and we assisted our client by attending the grievance meeting, taking notes and providing relevant advice and guidance during the proceedings. A preliminary investigation into the grievance had commenced prior to the grievance meeting and following the grievance meeting, a further investigation was undertaken. The outcome of the grievance was that there was no case to answer. We supported our client with continual advice and guidance and drafted the grievance outcome letter for their approval.
As a result of the finding that there was no case to answer the disciplinary hearing originally scheduled for 12th November 2007 which was previously suspended, was rescheduled for 12th December 2007. It was decided, following the grievance, that the disciplinary hearing would be managed by the MD and not the Operations Manager.
However, on 8th December 2007, prior to the disciplinary hearing being held, the employee submitted an appeal against the outcome of the grievance meeting. We advised our client to acknowledge the appeal and it was explained to the employee that the grievance appeal would be scheduled once the disciplinary hearing had been held.
The disciplinary hearing proceeded on 12th December 2007 and we assisted our client again by attending the disciplinary hearing, taking notes and providing advice and guidance throughout the hearing. As a result of the disciplinary, the employee was issued with a written warning for Insubordination. We supported our client with continual advice and guidance and drafted the disciplinary outcome letter for their approval.
On the 19th December 2007 the employee appealed against the outcome of the disciplinary hearing.
Simultaneous Grievance Appeal and Disciplinary Appeal
We advised our client, due to having both a grievance appeal and a disciplinary appeal pending, that these be discussed within one meeting, with a clear break in between each appeal. Also, in order to ensure objectivity, both the grievance and disciplinary appeals were heard by an independent Director. Due to the employee raising concerns with the authenticity of the notes made at both the grievance meeting and disciplinary hearing a second note-taker was in attendance and a tape recording was also made. The grievance and disciplinary appeal meetings were held on 14th January 2008.
We were once again able to provide support to our client by providing advice and guidance to the independent Director prior to the appeal meetings. We also assisted our client by attending the appeal meetings, taking notes and providing advice and guidance throughout the proceedings.
Following the grievance appeal meeting further investigation was carried out. However, the original decision taken at the grievance meeting was upheld. We assisted our client with continual advice and guidance and drafted the grievance appeal outcome letter for their approval.
Following the disciplinary appeal, the original decision to issue a first written warning was modified to a verbal warning. We assisted our client with continual advice and guidance and drafted the disciplinary appeal outcome letter for their approval.
In consideration of the difficult nature of both the grievance and disciplinary processes we advised our client to write to the employee in order to recognise these difficulties and to offer support, if required, with moving on. We drafted an appropriate letter for our client’s consideration. This letter was issued to the employee on 24th January 2008.
However, on 14th March 2008 the employee responded in writing and demonstrated within the letter a continued defiance and an inability to accept the decisions made during both the grievance and disciplinary processes.
On 20th March our client responded to the employee’s letter and stated that both the grievance and disciplinary processes had been exhausted and that the matter was now closed. He confirmed his future expectations of the employee and how he would respond if the matter was raised again.
The Resignation and Statutory Grievance
On 28th March 2008 the employee submitted a resignation letter. A number of issues were raised within the resignation letter, which had previously been discussed at length during the earlier grievance and disciplinary proceedings. There were however a few other matters which had not been previously raised by the employee.
When a resignation letter contains complaints, which have not been raised or discussed before, it is important to be aware that this can constitute a statutory grievance. We therefore advised our client to respond accordingly and invite the employee to a meeting so that he could formally discuss his new grievances.
Our client followed our advice and a meeting was held with the employee on 14th April 2008. We supported our client by attending this meeting and taking notes. The additional matters raised by the employee were discussed at length and following the meeting we drafted an outcome letter for our client to review. Despite addressing a number of the issues raised by the employee, the employee continued with their resignation and left our client’s employment on 25th April 2008.
Possible Constructive Dismissal
The risk to our client was a possible constructive dismissal claim. An employee has 6 months, following submission of a grievance, to file such a claim. This 6-month time frame expired on 25th October 2008 and no claim was filed.
Although we have provided a brief summary of this case, it was very complex. Our client followed our expert advice and guidance, which was underpinned by the CIPD (Chartered Institute of Personnel and Development) and also benefited from the hands-on support we were able to offer. This expert support and advice, along with the patience, resilience and professionalism demonstrated by our client diluted and weakened any possible future constructive dismissal claim to such an extent that no claim was filed.
It is worth noting that the maximum compensatory award for constructive dismissal is £76,574.
"There are very few SME’s with the knowledge and resources to deal with a situation like this. What started out as a straight forward disciplinary hearing, quickly evolved into an extremely complex process. From the outset there were signs that this employee was on a pre-determined course and it was quite obvious that they had sought legal advice from a very early stage.
There were times when I considered the process to be long and drawn out and also times when I would have preferred to take a different course of action however Hassle Free HR clearly explained the consequences of what I would have preferred to do and so I continued to follow the advice given.
Without the support of Hassle Free HR, I believe that we would have been very fortunate to have avoided a claim of Constructive Dismissal and, whilst I am confident that we could have defended such a claim within an employment tribunal, I am extremely grateful not to have had to."