Effective use of a grievance during the disciplinary process

Yousef could have been forgiven for questioning if raising a formal complaint of his own was really the best way to respond to an unfair and career-threatening disciplinary allegation levelled against him.

As a nurse at a care home for the elderly, the allegation that Yousef delayed seeking medical advice for a resident was incredibly damaging.

He was suspended from work and later invited to a formal disciplinary hearing to face an allegation said to amount to gross misconduct.

Yousef denied the allegation from the outset. He was shocked by the action being taken, but confident he would eventually be able to clear his name.

Knowing he needed help with the case, Yousef contacted our Employee Support Centre. He was put in touch with one of our expert trade union representatives.

Yousef, who had 12 years’ service with his employer, discussed the case with our trade union rep, and provided him with the evidence to support the allegation.

The investigation report from the employer confirmed the allegation of delaying medical attention was said to have been made by a paramedic who attended the home to treat the resident.

But a statement from the paramedic and details of what they actually said were not included with the evidence.

The only witness statements were from two employees on shift at the time, who described how Yousef tended to the resident and called an ambulance, which was delayed arriving at the home.

Our representative wrote to the employer to request a copy of the statement from the paramedic.

The employer said it would not provide the statement, and that Yousef would not receive a copy of it.

Out trade union rep pointed out the requirement in the ACAS Code of Practice to provide witness statements ahead of a disciplinary hearing.

Despite an exchange of subsequent email correspondence, the employer was adamant it would not provide the statement.

That stance, along with other concerns about the process, resulted in our trade union rep raising a grievance on behalf of Yousef.

It included a number of grounds along with the assertion the disciplinary process was unfair in that evidence was being deliberately withheld, which denied Yousef a fair disciplinary hearing.

Our trade union rep requested in the grievance letter that the disciplinary process be suspended until the grievance was resolved.

He pointed out it was not appropriate to deal with the grievance as part of the disciplinary process or alongside it, as if the grievance was upheld it would have ramifications and bearing on the disciplinary process.

The employer initially refused to stop the disciplinary process. However, it eventually agreed to do so after our trade union rep persisted it was the prudent and fair way to deal with the cases.

At the grievance hearing our trade union rep argued and fully explained why the withholding of the statement from the paramedic was grossly unfair, especially as it was the only evidence to support such a serious allegation.

Surprisingly, the employer rejected the grievance. It asserted that withholding the statement was fair as it was private and confidential and could not be shared because of GDPR,

Our trade union rep submitted a grievance appeal on Yousef’s behalf, and represented him again at the appeal hearing, and presented his case.

He rubbished the justification given for withholding the witness statement reiterating, as he did at the grievance hearing, that it was a breach of employment law.

Our trade union rep told the appeal hearing that without access to the crucial piece of evidence, Yousef cannot fully understand and respond to the allegation against him.

Concern about the lack of transparency undermining the disciplinary process and how the employer’s stance could lead to a biased and unjust disciplinary outcome were also expressed.

Our trade union rep was strong in his assertion that as it was the only evidence to support the allegation, the disciplinary process should be reviewed and stopped, if a copy of the statement would not be provided, as withholding it for the reason stated could not reasonably be justified.

The grievance appeal hearing outcome led to the disciplinary case being dismissed, suspension being lifted and Yousef being invited to return back to work.

If you believe you are being treated unfairly during a disciplinary process and you need help to raise a formal grievance, you can get assistance from of one of our experienced, dedicated and skilled trade union reps. Contact our Employee Support Centre or call us today for a free initial consultation on 0333 772 0611.