What should an employer do if an employee raises a grievance during a disciplinary process?
A frequent question we receive from employers is what to do when they have instigated a disciplinary process and the employee raises a grievance. Employers often feel that their employee’s grievance has been instigated as a delaying tactic.
As a starting point ACAS guidance states that ‘where an employee raises a grievance during a disciplinary process the disciplinary process may be temporarily suspended in order to deal with the grievance. Where the grievance and disciplinary cases are related it may be appropriate to deal with both issues concurrently.’
The recent EAT case of Jinadu V Docklands Buses confirms the ACAS guidance where the matters raised are related. In this matter the EAT confirmed that an employer was correct not to postpone a disciplinary process for a grievance hearing, where the employee (Ms Jinadu) refused to undertake driving performance training. The employee was employed as a bus driver and due to issues regarding safety when she was driving she was placed on training. As a consequence of this she alleged that the manager instructing her to undertake performance training was in fact bullying her.
The Claimant continued to refuse to attend the training despite the disciplinary process being adjourned to allow her to attend and she was eventually dismissed for Gross Misconduct.
The ET found that the decision to dismiss was within the band of reasonable responses. The Claimant therefore appealed on the basis of the process of the disciplinary and failure to postpone the disciplinary. The EAT strongly rejected the Claimant’s appeal on the ground that the dismissal was unfair because the employer did not put the disciplinary on hold.
However, each case will need to be considered carefully on the way it proceeds. For example if a grievance is raised about the process of the disciplinary itself, this can be dealt with as a disciplinary appeal point. If an employee however raises a grievance in relation a protected characteristic, an employer would be prudent where the two matters are related to consider postponing any disciplinary process.
Following this case Employers can at least be clear that there is no automatic right for an employee to pause a disciplinary when a grievance has been lodged.
These notes have been prepared for the purpose of an article only. They should not be regarded as a substitute for taking legal advice.