The votes are nearly all in, and undoubtedly talk of the new government will dominate the news pages for the coming days and weeks. The following article will hopefully serve as a brief distraction from the election, and deals with a particularly thorny employee relations issue – what should employers do when an individual raises a grievance during the course of disciplinary proceedings against them?
In the recent case of Jinadu v Docklands Buses the Employment Appeal Tribunal dealt with this issue. In that case, a bus driver’s employer considered her driving to be substandard, and she was instructed to arrange a driving assessment at an in-house training centre, an instruction she repeatedly refused to comply with. She was subject to disciplinary proceedings and dismissed for gross misconduct. During the disciplinary proceedings she made allegations about a number of managers.
The Employment Tribunal found that the claimant’s dismissal had been fair, on the ground that she repeatedly refused to attend the training school and that the penalty of dismissal lay within the band of reasonable responses a reasonable employer might have adopted. On appeal to the EAT, one of the arguments put forward by the employee was that the dismissal was unfair because the employer had not postponed the disciplinary proceedings to deal with the employee’s grievances. The EAT found that the employer was not obliged to put the disciplinary investigation on hold until they had dealt with the individual’s grievances.
The EAT’s finding in the above case is brief, but it is a helpful confirmation that a dismissal will not necessarily be unfair if an employer does not postpone disciplinary proceedings where a grievance or grievances have been raised. This is certainly helpful to employers who are similarly reluctant to delay disciplinary proceedings and, depending on the relevant circumstances, pressing ahead with a disciplinary may be both a fair and indeed the correct way to resolve matters.
Of course each case will turn on its facts and employers, as always, need to be alive to circumstances which indicate that postponing disciplinary proceedings would be the fair and appropriate thing to do. Such circumstances are numerous, but would include the nature and seriousness of any grievance, and the extent of any overlap between the grievance and the disciplinary proceedings in question (bearing in mind the option of dealing with a grievance within a disciplinary process, where the contents of that grievance are integral to existing proceedings). By way of example, if an individual being disciplined for poor time keeping raised a grievance alleging that their conduct was a direct result of the culmination of a protracted course of bullying by a line manager on the basis of a protected characteristic, it would be foolhardy not to consider the grievance before finalising the disciplinary proceedings and taking disciplinary action.
Grievances and disciplinary proceedings are some of the most difficult and time consuming issues which employers will have to deal with, and that difficulty is compounded when they occur concurrently. Whilst employers should consider the nature of any grievances raised during disciplinary procedures, and the extent of any overlap between the two, employers should not be reluctant to press ahead where this is on balance the appropriate course of action – unduly delaying proceedings will, unless there is a compelling reason to do so, rarely be in the interests of either the employer or employee.
Posted on 08/05/2015 in Legal UpdatesBack to Knowledge