People Manager Guide – Grievance, disciplinary and capability proceedings

Introduction

Your response to managing grievance, disciplinary and capability proceedings is critical to ensuring fair treatment of staff.

The role of people managers

• As a people manager your role is vital to enable your team to work to the best of their ability.
• It is also your responsibility to take action if a member of your team is not performing to the standards required – or if their attendance is below acceptable levels.
• Poor performance, misconduct or poor attendance may be disability related. It is up to you as a manager to talk to the employee and work out if this is the case. If so, you will need to decide whether to continue with any disciplinary or performance improvement proceedings, or if the proceedings should be suspended because adjustments had not been made. Managers should rely on support from colleagues – for example, HR and occupational health – when doing this.
• If misconduct is related to the person’s disability, you will need to think about the circumstances and the severity of the conduct in question and the appropriate sanction.

This section will help you manage complex and sensitive situations. It gives you information to help you:

• Adjust disciplinary, capability, performance and attendance management and grievance processes for the needs of disabled people or those with long-term conditions where appropriate.
• Respond appropriately to discovering that an employee’s grievance, or the reasons for the disciplinary or capability proceedings, are related to the person’s disability or long-term condition.
• Manage the process if employees are off sick during grievance, disciplinary or capability proceedings.
• Protect yourself and your organisation from claims of unlawful discrimination.

Understanding grievance, disciplinary and capability proceedings

Grievances

Employees can raise a grievance with their employer if they have concerns, problems or complaints you haven’t been able to resolve informally during your regular review meetings.

Grievances may be raised if the employee:

• Is unhappy with their performance appraisal.
• Believes they are being discriminated against.
• Believes they are being harassed or bullied.

The grievance may be directed against colleagues, their manager or the organisation as a whole.

Disciplinary or capability proceedings

Some organisations may instigate disciplinary proceedings against an employee for poor performance. Others use disciplinary proceedings only for misconduct cases and instigate capability proceedings or performance improvement plans to try to improve performance or attendance. Make sure you check your own policies and processes before taking any action and involve the right people in your organisation, such as HR professionals.

Circumstances in which you may decide to instigate disciplinary or capability proceedings can include:

• Failure to follow procedures – for example, reporting sickness absences.
• Breach of policies – for example, internet or email policies or drug and alcohol policies.
• Suspected illegal activity – for example, theft or fraud.
• Allegations of harassment or bullying, or other inappropriate workplace behaviour.
• Persistent failure to meet targets or objectives.
• Poor attendance.
• Poor performance or standard of work, failure to meet targets or Key Performance Indicators (KPIs) or poor feedback from internal or external clients.

Your organisation should have policies for dealing with capability, disciplinary and grievance procedures, including the basic principles that:

• Issues raised will be dealt with promptly. Meetings and decisions should not be delayed unreasonably.
• Investigations will be conducted to establish the facts.
• Employees will be given the opportunity to present their case fully before any decisions are made.
• Employees will be allowed to be accompanied at meetings.
• Employees will have the right to appeal against any decision.

In addition, your organisation must ensure that all processes and meetings are accessible. It must also ensure that reasonable adjustments are made where necessary to ensure that a disabled person receives a fair hearing.

The importance of accessible communication in your procedures

You must ensure grievance, disciplinary and capability procedures are accessible for disabled employees. This means documents must be available in alternative formats such as large print, Easy Read or electronically if necessary. If there is delay in producing these, then time limits will need to be extended.

Read our Inclusive Communication Toolkit for more information.

What adjustments could I need to make?

Examples

• Allowing longer to prepare for the meeting. A disabled person might need longer to prepare for the meeting, particularly if they have problems concentrating or if they are reading documentation in an alternative format or having it read out loud to them. It could be a reasonable adjustment in these circumstances too to extend the time periods to accommodate this, and you should ask the employee concerned whether they require any adjustments to the process when it is initiated.
• Providing interpreters and other aids to communication. Ensure that readers, advocates, sign language or other interpreters are available if they are needed. These are important meetings that can have a significant impact on an employee’s career, so they must be able to understand what is being said and to present their own case.
• Allowing the individual to be accompanied by an appropriate person. Many employers say employees can only be accompanied by a colleague or a trade union representative at meetings. However, if a disabled employee needs to be accompanied by someone else as a reasonable adjustment – for example a support worker or a counsellor – this must be allowed.

This is not an exhaustive list of adjustments that might be necessary. Talk to the employee about the procedure and explain what will happen and what they need to do. Then ask if any aspect of the process might place them at a disadvantage. If it does, you need to discuss ways in which disadvantage can be removed or minimised by making changes to procedure.

If proceedings are related to disability

During your investigations, you may discover the proceedings are related to the person’s disability or long-term condition. In these cases, you need to find out how their disability affected their conduct or performance.

For example:

• An employee with a learning disability may not have had procedures and policies explained to them, and so may not have known they were not following them.
• An employee with a hearing or visual impairment or dyslexia might not have been able to access the policies or procedures because they are in inaccessible formats – for example, videos without subtitles or policies in electronic formats that don’t work with assistive software such as screen readers.
• An employee with a learning disability or autism might not have understood that their behaviour was inappropriate in the workplace or even illegal.
• Behaviour and conduct issues that may be related to a disability or long-term condition may need to be treated differently. Unacceptable behaviour should never be excused or ignored because of a disability, but you may need to make adjustments to enable the colleague to better manage their behaviour in future. This will need to be reflected in the outcomes of the investigation.
• An employee who has not had the adjustments they need – for example, assistive software to help them read documents – may not have been able to meet their targets.
• Adjustments to targets or key objectives might not have been considered as reasonable adjustments during performance reviews or appraisals that marked the employee down.
• A disabled person’s behaviour might have been in response to bullying, harassment or discrimination related to their disability.

It could be that neither you nor the employee is aware they have a disability or long-term condition when disciplinary, capability or grievance procedures are started. The possibility they might have a disability may emerge during the investigation. In these cases, you should suspend the proceedings until you have obtained more information from appropriately qualified experts such as an occupational health adviser.

Scenario – Misconduct related to a learning disability

Zoe works for a supermarket. Her duties include stacking shelves and handing baskets to customers. Zoe was recruited through a local organisation working with people with learning disabilities. This organisation suggested she would benefit from a buddy – at least initially – to show her around the store and explain her duties.

However, Zoe’s manager, Adam found she picked up her duties quickly and interacted in a friendly and easy going way with both colleagues and customers. He thought, therefore, that she didn’t need a buddy.

Two shift supervisors have now told Adam they or colleagues have seen Zoe taking and eating sweets from the pick ‘n’ mix selection in store. On one occasion Zoe was seen taking handfuls of sweets and putting them in the pockets of her overalls as she headed to the canteen for her break. Adam knows eating food from the store that hasn’t been paid for is gross misconduct that could lead to Zoe’s dismissal.

Setting up the initial meeting

Zoe is given a letter asking her to attend a meeting to discuss the allegations.

She shows this letter to her support worker, Christine, who rings Adam to tell him Zoe does not understand the letter. Christine asks for the letter to be produced in Easy Read which uses simple language and pictures.

Adam agrees to do this and to allow Christine to accompany Zoe to the meeting.

Discussing the allegations

With an HR manager present at the meeting, Adam tells Zoe he has been told she has been taking and eating sweets from the pick ‘n’ mix. He asks her if this is true. Zoe agrees she has sometimes taken sweets. Adam asks her if she realises she is now in a great deal of trouble and might even lose her job. Zoe is bewildered and becomes upset.

The meeting is adjourned to allow Zoe to compose herself and to talk to Christine. Zoe tells Christine she didn’t know she wasn’t supposed to take the sweets. She thought they were there for everyone to help themselves. Christine tells Zoe she must say this to Adam.

When the meeting starts again Zoe tells Adam she is sorry for taking the sweets and she didn’t know this was wrong. Christine suggests that if Zoe had had a buddy when she started work, this situation may have been avoided. Adam refers to the staff handbook which has policies that clearly state eating stock is both gross misconduct and theft for which criminal proceedings may be brought. Christine points out that Zoe hasn’t had an Easy Read version of the handbook, and no one explained the policy to her.

Adam’s response

Adam and the HR manager decide it would be unfair to instigate disciplinary procedures against Zoe because she had not known about the policy, and she had not understood what she was doing was wrong. She also had not realised the possible consequences of her actions.

They also decide Zoe should be given an Easy Read copy of the staff handbook and have it explained to her by a buddy. She must understand that if she eats food in the store again without paying for it, she will be dismissed.

Feedback on the Easy Read copy of the staff handbook is that it is more popular and read by more existing and new staff. 

Disability-related misconduct

If the reason for poor performance or misconduct is disability related, you will need to decide, together with your colleagues, whether:

• you should continue with the proceedings, or
• if the proceedings should be suspended in the light of this new information.

The law

If you – as the employer – could reasonably be expected to know about the employee’s disability prior to the incident, it may be unlawful to continue with the process. You can take disciplinary or capability proceedings against a disabled employee if the reason for the proceedings is not related to the person’s disability.

Misconduct

If misconduct is related to the person’s disability, you will need to think about the circumstances and the severity of the conduct in question.

Remember, unfavourable treatment in the form of capability or disciplinary warnings and sanctions could amount to discrimination arising out of a disability, depending on the circumstances.

For guidance on a specific case, please contact Business Disability Forum’s Advice Service.

If this is the first instance of the behaviour, then you might decide:   

• No warnings are appropriate because the person did not understand the nature or effect of their behaviour or had no adjustments in place to support them.
• Some penalty is needed because of the nature of the conduct and the effect on other people. Rather than impose the penalty usually applied in such situations, you might decide that a lesser action is appropriate. For example, you might substitute dismissal or a final written warning with an informal warning combined with an undertaking from the employee to apologise to colleagues. The employee may or may not have had adjustments in place, but the impact of their behaviour needs to be addressed, as well as support being identified and put in place to try to ensure that it is not repeated.
• In exceptional cases, you may have no option but to treat the situation as gross misconduct and to dismiss the employee. This might be because the employee has already been warned about their behaviour and steps have been taken to help them avoid behaving in such a way again. For example, these steps might be adjustments having already been made, such as a workplace mentor or buddy to help someone understand what might be interpreted as unacceptable harassment, or anger management training for someone who loses their temper with colleagues. You need to be clear that all reasonable adjustments required have been identified and put in place before going down this route.

Performance improvement proceedings

You should not continue disciplinary or capability proceedings if targets or objectives have not been achieved or if there are performance and/or conduct issues because adjustments were not identified and/or implemented.

You must take steps to implement the adjustments as quickly as possible. If there is a dispute about what adjustments may be reasonable, meetings with a mediator or external facilitator may help. At such a meeting, all the adjustments and the objections can be explored until agreement on what is reasonable is achieved and then the adjustments must be implemented.

Employees who are off sick during proceedings

An employee who has raised a grievance or who is the subject of disciplinary or capability proceedings might find the proceedings so stressful they go off sick. This can be a difficult situation as the sickness absence may delay investigations because you cannot talk to the employee or because they are not well enough to attend meetings.

Stay in touch

As with any other employee on sick leave you should keep in contact with them. If the employee has a ‘Tailored Adjustment Plan’ or Passport that has been kept up to date. You should know how to contact the employee and who should do this (for example by telephone or email) because you will have agreed this in advance.

Occupational Health

Your organisation is likely to have specific policies and processes to follow if the employee is signed off work for longer than (typically) four weeks, which may involve referral to your occupational health adviser. In cases where this is appropriate, ask the occupational health adviser if the employee might be able to return to work with adjustments and, if they are not, whether they are fit to attend a grievance or disciplinary hearing.

Occupational Health referrals may be in person or via video conferencing, depending on what circumstances permit in each case. Remember that the individual must consent to seeing an occupational health adviser and to a report from that adviser being shared with the employer.

For more on occupational health referrals see our Occupational Health Toolkit.

Can you continue proceedings while they’re off sick?

Depending on the nature of the person’s sickness, the length of time that they are off, the nature of their role and the impact on the business of not moving forward with the disciplinary, grievance or capability proceedings, it may be reasonable to continue such proceedings whilst the employee is off sick. You need to consider the impact on the individual and on the business of continuing versus waiting until the employee has returned to work.

For guidance on specific cases, please contact Business Disability Forum’s Advice Service.   

You should explain to the employee that even if they are not fit to return to work, it may help to continue with the proceedings. It could be that delaying proceedings might be more stressful than the meeting itself.

Explain to the occupational health adviser the nature of the meeting and adjustments that could be made to the process, for example:

• Providing transport to the workplace for the meeting.
• Holding the meeting in a different location such as another office or a neutral venue.
• Having the meeting by video call so the employee does not have to meet you and your colleagues face-to-face or travel.
• Allowing the employee to be accompanied. Most employers only allow employees to be accompanied by a colleague or trade union representative. It may, however, be reasonable to allow a disabled person to be accompanied by a counsellor, therapist or support worker. Employees sometimes ask if a family member, partner or friend can accompany them. This can be counterproductive if the person is too close to the employee to be objective and they might inhibit the employee from being open with you or if they want to speak for the person or “take over” in order to protect them.

Remember that an adjustment will only be ‘reasonable’ if it is effective – in this case, in helping you and the disabled employee achieve a fair and appropriate outcome to the process. Talk to the employee and think carefully about whether a family member or partner attending will actually help to achieve this aim.

Our resource ‘What is ‘reasonable’?’ outlines how to decide whether an adjustment is reasonable. Contact our Advice Service for guidance on specific cases and adjustments.

If an in-person or virtual meeting is not possible

If none of the above approaches work or they’re not possible, you might have to try to conduct the proceedings by letter. In this case, you should explain to the employee that you would like to meet them to talk about the issues. If the employee refuses to co-operate or is too ill to talk to you for a long period of time, you may have to conduct the investigation in their absence.

See our guide to accessibility features of different video conferencing apps. If proceedings will be conducted partly or wholly remotely, see our ‘Top tips for managing accessible virtual meetings’.

It is essential the person understands, however, that they are at risk of dismissal if they remain off sick indefinitely and are unable to talk to you to resolve the outstanding issues and return to work.