The question
An external agent, a non-employee, has raised a grievance against a colleague of mine, a first line manager, claiming that she was unsympathetic and cold during a telephone conversation, in which the external agent had asked if her son could leave site immediately to attend a funeral (his grandfather’s).
My colleague had already agreed that the team member could leave at noon, but on the morning of the funeral, he arrived asking to go earlier as he "wanted to go for drinks with some family members" whom he hadn’t seen for a while.
My colleague had said that this could be difficult and asked at what time he needed to leave. He replied: “At 10 o’clock”. My colleague explained that this would be tricky due to various customer expectations.
The team member then replied that he did not really need to go. About an hour later, however, he reiterated that had to leave at 10am as he was now a pall bearer because the details of the funeral had changed.
Again it was explained to him that this situation would be difficult, but that the question would be raised with the department head. Ten minutes later, my colleague received the call from the chap’s mother.
Disciplinary hearing
To cut a long story short, my colleague has had to attend a grievance investigation and is now facing allegations of bringing the company into disrepute as a result of being rude, cold and unsympathetic to the mother of an employee.
The mother has stated in her grievance letter that the employee would have raised the grievance himself but feared reprisals and discrimination together with bullying.
My colleague is distraught by these allegations as she suffers from a heart condition and a mental disability and fears that the company is trying to get rid of her.
When she asked what the potential outcome of the scenario could be, she was told it could lead to a disciplinary hearing under the allegation of gross misconduct.
She is currently off work due to illness as the impact of this situation has aggravated her conditions. My colleague is a good-natured person and treats everyone with respect. This scenario has come out of the blue for her. What is her legal position here and is there anything that she can do?
It should be pointed out that the team member was allowed to leave at 11am, a time that was initially deemed to be OK with the team member’s mother.
The legal verdict
Esther Smith, a partner at Thomas Eggar
Your colleague cannot prevent her employer dealing with a complaint from an external party about her conduct. Therefore, she will need to work with her employer through the complaint process, and any subsequent disciplinary, as and when she is fit to do so.
As the complainant is not an employee of the company, it is not so much a “grievance” as a “complaint” that has been raised. But the fact that her employer may conduct an investigation and hearing process similar to a grievance proceeding is not a major issue.
The best advice to give your colleague here would be to provide a full explanation of the situation as it occurred and to account for her conduct and responses.
It does not appear that the complaint actually centres on the time that the employee was allowed to leave site, but rather on the manner in which your colleague addressed the third party in her communications with her.
Therefore, the issue would be the same whether the discussion was about an employee leaving early to attend a funeral or a customer calling to query a delivery.
The matter of whether or not there are grounds to instigate a disciplinary hearing really depends on the outcome of the complaints process. The employer may find that there is a case to answer regarding your colleague’s behaviour towards the third party and that disciplinary action may be warranted.
But, on the facts presented by you, it seems most unlikely that there is a valid case of gross misconduct to answer. If your colleague does find herself dismissed for gross misconduct as a result of this situation (assuming she has statutory protection against unfair dismissal), she may well be able to make a claim.
Esther Smith is a partner in Thomas Eggar‘s Employment Law Unit.
Martin Brewer, a partner at Mills & Reeve
Any employee accused of misconduct can be taken through a disciplinary process by their employer. The employer, meanwhile, ought to have disciplinary procedures in place, which, as a minimum, comply with the principles found in the ACAS Code of Practice on Disciplinaries.
Disciplinary procedures can set out misconduct of such a serious nature that it amounts to gross misconduct, one penalty for which could be dismissal without notice or pay in lieu of notice.
But this situation tends to be reserved for the most serious offences. For an employer to make a finding of misconduct, they must:
- Genuinely believe that the employee is guilty
- Have a reasonable belief that the employee is guilty
- Have conducted a reasonable investigation.
So an employee’s first right in this set of circumstances is to be involved in a reasonable procedure, which includes a fair investigation and a hearing at which they can put forward their version of events. The process should also be transparent so that the staff member is aware of the case that they need to answer.
The employee will likewise have the right to be accompanied to any hearing. These are essential rights that all staff members enjoy.
Incidentally, if they are found culpable and dismissed, that dismissal would have to be a reasonable sanction in the face of all of the circumstances – something that depends entirely on the seriousness of the allegation.
Relevance to her defence
Cases like this turn on the evidence. But other than saying that there was a “grievance”, you do not indicate what the allegation is in any detail and so it is difficult to understand the seriousness of the situation.
However, if the employee was rude to a member of the public, most employers would consider it to be a relatively serious matter and your friend should take the allegation seriously.
In her defence, she ought to consider speaking to anyone who may have overheard the conversation and who may be able to support her (assuming that she denies it – I note you do not actually say that she denies the allegation).
You mention that your friend has a heart condition, but I doubt that is relevant unless she wants to allege that the condition made her act in a rude way.
Likewise you say that she has a mental disability (you don’t say what) but fall short of saying whether it is this that made her rude (and even if it did, why should an employer accept such behaviour?).
However, if either of these disabilities are within the meaning of the Equality Act and relevant to her defence, she should be prepared to argue that point with her employer.
In the end, as with any employee, your friend can deny the allegation, admit it and argue that it was not as serious as has been made out, or accept the allegation’s seriousness but seek to offer mitigation. What she should not do is bury her head in the sand and hope that the matter goes away.
Martin Brewer is a partner at law firm, Mills & Reeve LLP.
