Many employers will have experienced an employee raising a grievance during an ongoing disciplinary process. The grievance will often relate to events leading up to the disciplinary, or to the handling of the disciplinary procedure itself. In this scenario, employers are often unsure whether they should press ahead with the disciplinary or deal with the grievance first.
The ACAS code of practice on disciplinary and grievance procedures states that an employer may suspend a disciplinary process to deal with a grievance, or may deal with a disciplinary matter and a grievance concurrently where they are related. This wording offers little practical help to employers. However, a recent case in the Employment Appeal Tribunal (EAT) provides some assistance.
The case involved Ms Jinadu, a bus driver, and her employer, Docklands Buses. Despite a public complaint about her poor driving and CCTV footage capturing her failings, Ms Jinadu repeatedly refused to attend a driving assessment at Dockland’s in-house training centre. This attitude incensed Dockland’s Operating Manager, and Ms Jinadu was subsequently invited to a disciplinary hearing. During the disciplinary process, Ms Jinadu made a number of allegations relating to certain managers, including the Operating Manager. In spite of this, Docklands continued with the disciplinary process and dismissed Ms Jinadu for gross misconduct.
Ms Jinadu brought a claim for unfair dismissal, arguing (amongst other things) that the dismissal was unfair because the disciplinary procedure should have been suspended until her grievances had been resolved. The EAT rejected this argument outright in a single sentence (although it did find in Ms Jinadu’s favour for other unrelated reasons).
The decision on this point is encouraging for employers as it confirms that there is no ‘default’ requirement to suspend disciplinary proceedings pending the resolution of a grievance in order for a subsequent dismissal to be deemed fair. However, it should not be taken as a green light to carry on with a disciplinary process regardless of circumstances, as each case will turn on its own facts. Employers should continue to exercise caution, especially where the grievance is not directly related to the disciplinary proceedings and cannot easily be addressed as part of the same investigative process.