Tue 09 Jun 2015

Should an employer postpone a disciplinary hearing when a grievance is raised?

A common misconception amongst employers is that an employee can always disrupt disciplinary proceedings by raising a grievance.

The Employment Appeal Tribunal decided in the case of Jinadu v Docklands Buses that the employer was not obliged to suspend disciplinary proceedings to deal with a grievance which was raised by the employee concerned. The EAT also decided that it was not unfair that certain employees who were the subject of the grievance were involved in the disciplinary process.

The Claimant was a bus driver who was subjected to disciplinary proceedings due to poor driving ability. Whilst the disciplinary process was ongoing, she raised concerns and made allegations about some of the managers involved. The employer proceeded with the disciplinary action which ultimately ended in the Claimant's dismissal. The Claimant argued that the dismissal was unfair due to the fact that the disciplinary action proceeded while there was still an unresolved grievance ongoing.

It will though always depend on the circumstances of each case and this case should not be treated as having set a hard and fast rule. The ACAS Guide to the ACAS Code on Disciplinary and Grievance Procedures states at page 22 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 guidance makes clear that each case should be judged on its own merits.

As such, in some circumstances it will be appropriate to postpone the disciplinary procedure and attend to the grievance issues first. In other cases, a disciplinary procedure and grievance procedure should run simultaneously. It may also be possible to deal with any grievance issues at the disciplinary hearing itself as often the grievance being raised is effectively the employee's defence to the disciplinary issue.

The appropriate course of action will depend on the subject of the grievance. If the subject is unrelated to the disciplinary proceedings, then there is no need to suspend the disciplinary proceedings. If the complaint is against the decision maker for bias or discrimination, for example, then this could have an impact on the fairness of the decision and it is more likely that the employer will need to suspend the disciplinary hearing to attend to the grievance first. Alternatively, a quick practical solution would be to arrange for a different decision maker, if that is possible.

These issues require careful consideration in each case but, as a starting point, employers should bear in mind that it may well be possible to proceed without postponing the disciplinary proceedings if a grievance is raised. Alternatively, there may be sensible practical solutions which will avoid delaying concluding the disciplinary process.


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