An employee, who is on sick leave, has been through a grievance meeting but now it seems a disciplinary meeting is needed for the same employee. Esther Smith and Martin Brewer advise on whether the grievance should be fully concluded beforehand.

The question:

An employee has gone through a grievance meeting (GM) with his line manager and the manager has been preparing a reply to the same to let the employee know the outcome of his grievance.

However, the line manager has now seen adequate written evidence to suggest that instead a disciplinary meeting (DM) is in order for gross misconduct. My question is, can an employer request holding a DM with the employee even though the GM has not been fully concluded (ie by way of the decision of the line manager and no appeal against the decision)?

If the employee is on sick leave, can an employer compel them to attend the DM assuming it is not a life-threatening sickness or long-term illness?

Legal advice:

Esther Smith, partner, Thomas Eggar

In theory, if something comes to light that is properly deemed to be a disciplinary allegation, there is nothing to prevent the employer dealing with this in the normal way, even if at that time there is an ongoing grievance procedure relating to that employee.

However if the events of the grievance and disciplinary or the facts and circumstances on which they are both based are intrinsically linked, then you may be best advised to conclude the grievance prior to instigating the disciplinary; although you should inform the employee of the disciplinary issue at the time you become aware of it, and advise them that you will deal with it once the grievance has been concluded.

In terms of the ability to compel attendance at a disciplinary meeting, technically attendance at such a meeting is a work-related matter and if the employee is signed off as being unfit, on the face of it that would include attendance at a disciplinary hearing. In this situation, particularly if the employer has reason to believe that the employee has only been signed off as a means of avoiding the disciplinary, you could seek confirmation from the employee’s GP as to whether or not they are fit to attend the hearing despite being unfit for their contractual duties. However if the GP says they are not fit to attend then I am afraid you will just have to wait.

Esther Smith is a partner in Thomas Eggar’s Employment Law Unit. For further information, please visit Thomas Eggar.

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Martin Brewer, partner, Mills & Reeve

This is not necessarily as simple a question as it seems. First, you do need to conclude the grievance process, including the right of appeal as that is required by the statutory grievance procedure. This will be abolished on 6 April but the statutory procedures will continue to apply to this matter. Second, of course it is possible that you can have a disciplinary hearing before a grievance is concluded but from what you say that may not be appropriate in this case.

If the line manager has learnt something during the grievance process that gives rise to a disciplinary hearing this directly crosses the path of the as yet incomplete grievance process. What would happen if a disciplinary process was commenced on the basis of information gathered during a grievance process and at the grievance appeal meeting it turns out that the information was incorrect or not as damning as it at first seemed?

It seems to me that there would be a trust and confidence issue and the employee may well feel truly aggrieved at a somewhat precipitate disciplinary process. So in this instance (although it will not always be the case) I would advise you to complete the grievance process first.

Finally, yes you can certainly insist that a sick employee nevertheless attends work for the purpose of dealing with grievances and disciplinaries. A sick note is only evidence that the employee cannot carry out their work duties. It does not give them the right to refuse to do anything else. You should insist they attend (issue an instruction not an invitation) and if they refuse, point out that this in itself is a breach of contract unless there is a real physical inability to travel.

Martin Brewer can be contacted at martin.brewer@mills-reeve.com . For further information, please visit Mills & Reeve.

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