Avoid the pitfalls of discipline and grievance

No employer wants to go through a discipline and grievance process – they are time-consuming, potentially costly and can damage employee relations and reputation as well as the bank balance. However, many employers find themselves having to deal with these issues at some point. What are the key triggers and how can companies reduce the risk of a minor grievance becoming a major headache?

Poor working relationships between line managers and employees are the main cause of workplace disputes, according to XpertHR’s 2010 survey on individual dispute resolution. Three-quarters of the 197 organisations surveyed had dealt with bullying and harassment claims and almost 40% had dealt with pay grievances. Race discrimination (30%), sex (27%) and disability (27%) also featured significantly.

At their best, disciplinary and grievance procedures promote good management practice and are an invaluable tool to address performance issues, bullying and harassment or complaints from staff. But line managers are often wary of the consequences of entering into a disciplinary process and actively avoid them, according to Sara Sawicki, partner at law firm Pinsent Masons. Sawicki believes that the complex and elaborate nature of discipline and grievance measures deters managers from using them.

“Often the procedures are far too complicated and there are far too many stages. Rather than being an everyday tool for managing staff, very often managers actually prefer not to have to use the procedures at all because they fear that once they enter into the process, this is effectively the point of no return and they are in a procedure that is just going to take months to resolve.”

But George Boyce, senior policy adviser at Acas, believes it is the people rather than the procedures that cause the problem.

“From my perspective, the most common problem is not procedural but rather the reluctance of managers to hold the difficult conversation. Most managers, like most people, are not confrontational by nature and rather than address a disciplinary issue they prefer to turn a blind eye and hope it will go away or resolve itself,” he notes.

“This rarely works and the issue usually comes back but is now more difficult to handle. If an employee is misbehaving or performing poorly the motto is ‘deal with it, don’t ignore it’.”

Boyce says that bullying and harassment is a recurring problem for employers. “In terms of grievances, the biggest issue that comes through to us is bullying and harassment and this is certainly one many managers find difficult to handle.”

Many seemingly minor workplace gripes can also escalate. “Some of the main problems that we get called about include issues over attendance as well as smaller issues that combine into a bigger problem; for example, timekeeping, personal performance and conduct in the workplace.”

HR managers need to strike the right balance between informal and formal measures and make sure that line managers are fully aware of best practice guidelines and how to deal with staff complaints, Boyce believes.

“The mix between formal and informal will depend very much on the case. In many instances disciplinary and grievance issues can be resolved quite satisfactorily with a quiet, informal word. However, in more serious cases, such as discrimination or bullying, it may be more appropriate to move straight into a formal process.”

Having clear, strong discipline and grievance guidelines will also give employers a much better chance of defending any dismissal claims that reach tribunal stage and employees a chance to correct poor performance before serious disciplinary action is taken.

Sawicki recommends simplifying discipline and grievance processes and incorporating the informal stage into initial procedures.

“As a matter of good practice, we recommend employers reduce the number of stages in the procedures, to streamline them,” she notes.

“There should be greater focus and greater use of the informal stages, in my view, so that it should be written in the disciplinary and grievance procedures that an individual cannot enter into the formal stage until the informal stage has been entered into.”

Acas also advises taking a soft approach wherever possible and giving employees a chance to express their view and concerns in the first instance. Likewise, if an employee has a complaint, it should be made clear that they can discuss it with their manager or another senior member of staff. If the problem concerns the manager directly (often the most common cause of disputes) then the employee may be reluctant to raise it with them, which can cause difficulties. Line managers also need to be wary of an informal chat slipping into a formal procedure and ensure that discussions and issues raised are documented and carried out in a professional and correct manner.

Unfortunately, it seems that many employers have still got a long way to go. The number of employment tribunal claims doubled in 2009-10, according to recent figures from the Tribunals Service. The number of claims associated with the Working Time Directive tripled and redundancy pay claims increased by 76%.

Sawacki says that, in reality, many line managers jump straight into a formal discipline and grievance process and sidestep the quiet chat. This inevitably leads to heated debates, hearsay, feelings of injustice and, ultimately, tribunal claims.

“There seems to be a trend to avoid using the informal stage of a procedure and therefore it immediately moves into the formal process. This means that people become quite entrenched and therefore you have this concept of them being quite adversarial in nature. So there is less focus on resolving the dispute and more on either party getting their point across and being believed.”