Timed out

02 Dec 2014

I’m acting for a couple of unconnected clients employed in different parts of the public sector. One is suspended pending a disciplinary investigation, the other is suspended pending a grievance investigation into allegations that her Line Manager bullied her and disclosed sensitive personal information to an unauthorised third party (that the employer has suspended my client and left the alleged bully in post is but one of the mounting litany of errors in the case). It is accepted that investigations are required and I’m confident both clients will emerge from the process with their names and reputations intact; they’re both in the right – I know I would say that wouldn’t I but take it from me, they’re OK!

The problem is that both clients face irreparable damage to their standing within their respective organisations because of the time it’s taking to resolve the issues. In each case the suspensions exceeds 8 months. In each cases the clients are in senior positions, on full pay, becoming de-skilled, there’s no end in sight and one of them is depressed. We are fast approaching a point where whatever the outcome there’ll be litigation; it might be breach of contract, constructive dismissal or discrimination. Why? Because in each case there’s a typical public sector procedure which runs to about 40 pages with independent investigators, assessors,  bed knobs and broomsticks all who proceed at the statutory snail’s pace. I’ve no doubt that forensically sound decisions will emerge from their efforts and these will be supported by reams of attested documents but that misses the point.

Internal investigations of disciplinary allegations and grievances are not required to be exhaustive; they are required to be reasonable. What does that mean? The ACAS code of Practice is never far from my side these days. It contains the clear guidance that:

Employers and employees should raise and deal with issues promptly and should not unreasonably delay meetings, decisions or confirmation of those decisions… (the emphasis is by ACAS)

In cases where a period of suspension with pay is considered necessary, this period should be as brief as possible, should be kept under review and it should be made clear that this suspension is not considered a disciplinary action…

The meeting should be held without unreasonable delay….

Good disciplinary procedures should…provide for matters to be dealt with speedily…

Managers should arrange a [grievance] meeting, ideally within five working days…

It’s a reflection of the times that my “go to shelf” not only has the green book of the law (all the employment legislation you’ll ever need in one thick volume), it also has ACAS Codes of Practice 1 & 4 , the ACAS Shared Parental Leave Good Practice Guide and the ICO’s Code of Practice on Subject Access Requests. It’s actually quite refreshing to go back to this source material from time to time and I recommend this to anyone who thinks they don’t need guidance on running a procedure; you might just surprise yourself.