Anyone have experience of someone going on stress leave due to disciplinary and then submits a grievance - General - HR in Schools and Academies

9 Anyone have experience of someone going on stress leave due to disciplinary and then submits a grievance

11 Aug, 2020 13:03

I just wanted to see what experience people may have had and how they handled a scenario of stress leave etc. The person in question was increasingly being exposed for huge incompetencies which were going to lead to a disciplinary. Before notice of disciplinary was issued they signed off on work related stress. After a period of time and changing dates, the person then submitted a grievance suggesting safeguarding concerns (against the person who was due to discipline them). The disciplinary process was put on hold and the elements of the grievance dealt with through thorough investigation. All of the accusations were unfounded. A new date has been set for the disciplinary but the person refuses to attend but has put forward submissions drafted by a lawyer. My questions are: 1. If the panel find the employee guilty of gross misconduct, would they be entitled to dismiss without the risk of discrimination (anxiety and depression which was not declared at the time of appointment) 2. Should the submissions be allowed or considered given they were drafted by a solicitor?

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Ray | 0 Posts

11 Aug, 2020 13:18

Hi Micaila
This type of question (and variations) occurs regularly.
Make sure that you inform the person that the hearing will go ahead with or without their presence but that you would prefer that they attend so that they can interact with the disciplinary panel where, in their opinion, that would add useful information to help make a decision..
You can't "unknow" their purported condition, even if it was not declared at time of appointment - so if you want to cover all bases it would potentially be useful to have an OH view as to whether they are able attend the hearing. If they refuse to have an OH assessment then that will be in your favour because it will demonstrate that you have tried to make reasonable attempts to obtain information needed to make a decision. Make sure that the person understands that failure to submit to an OH review will not stop the hearing and it will go ahead.
Whether the submissions have been prepared by a sollicitor or the person's cat isn't really relevant - they have been submitted and you should take them into account in making your decision.

PS crossed with Keith's similar reply :-)
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Keith | 0 Posts

11 Aug, 2020 13:18

Sadly its all too common for some people (not all) facing a disciplinary to go off sick with stress. It can be genuine or can be simply a delaying tactic. What you mustn't do is allow any frustration caused by the action to stop you following a fair and reasonable process.

It seems you have concluded the grievance. I assume the result has been given?

As you are aware they have a disability (given you believe it wasn't declared at time of hiring) and that this may be covered by the Equality Act as part of any process you need to fully investigate this and consider if it is covered by the Act and if so what reasonable adjustments you need to make. For this you need an Occ health report.

Following this you can proceed to a disciplinary. I would make it clear to employee that if they will not attend you will go ahead in their absence. In this case I would allow the written submissions.
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Micaila | 0 Posts

11 Aug, 2020 17:10

Thanks Keith. Much appreciated.
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Micaila | 0 Posts

11 Aug, 2020 17:11

Thanks Ray for the advice. I am on track based on what you and Keith have stated but I just wanted to double check.
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David | 0 Posts

1 Oct, 2020 12:36

I am dealing with an employee, who sent in a grievance, sicknote on day that they returned from holiday. keeps declining dates for hearings, since then we have seen other evidence that whilst off ick and awaiting the grievance hearing has sent out confidential information and posted on social media discriminatory remarks about the company, so now pending an investigation that will lead to a disciplinary. Grievance has been heard but appealed against and they say they wont attend Investigation until Appeal is concluded.
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Ray | 0 Posts

1 Oct, 2020 14:28

In reply to David:
Keep the two matters separate and run them in parallel. Make it clear that the disciplinary process will move forward, with or without their presence, but that it is in their interests to participate. Do not let them dictate how company internal processes work.
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David | 0 Posts

1 Oct, 2020 14:30

In reply to Ray:
Hi Ray, Thanks that is my intention and using our right exercise conducting the meetings in their absence if not attending the 2nd invite. FYI is off with work related stress
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Ray | 0 Posts

1 Oct, 2020 15:06

In reply to David:
Work related stress won’t necessarily preclude an investigation meeting. An OH assessment on their capacity to attend the investigation would make the position clearer....
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Elizabeth Divver | 0 Posts

1 Oct, 2020 15:24

In reply to David:
The specific question you need to ask OH to address is whether it would lessen their stress if the unresolved disciplinary issue hanging over them were to be resolved. It is extremely unusual for the answer to this question ever to be anything but yes. Armed with that response, you can move forward in the knowledge that it is making their situation better, not worse.

If they insist that they cannot attend, then you can offer the options of proceeding in writing, proceeding at a suitable location off-site (so they don't have to come into their workplace) or with a colleague standing in for them, and you do this in the knowledge that this has been deemed by OH to help their stress levels. Proceeding via Zoom or Teams is also an option to offer so there is no additional worry of infection being passed on.

This is a ritual dance and you will find many threads on here that cover all the usual steps.
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