One of the common occurrences experienced by human resources professionals is the outbreak of a grievance following the start of discipline proceedings. The ACAS Guide says that you can stop the discipline and deal with the grievance first (but you don’t have to – my words). If possible we prefer to run them separately but concurrently when the grievance is about something unconnected with the discipline otherwise you can face a lengthy delay. Such grievances often go hand in hand with lengthy sickness stress absences. If the two are connected it makes sense to consider the grievance within the discipline.
Recently, the EAT had to decide whether an employer’s decision not to halt the discipline process when the employee concerned raised a grievance was unfair.
Ms Jinadu was a bus driver who worked for Docklands Buses. Owing to poor driving she was subject to disciplinary proceedings. During the process she made a number of allegations about some of the managers involved and requested that her complaint be dealt with through the Company’s grievance procedure. The employer planned to address her grievance, but did not halt its disciplinary process. The disciplinary process was completed and Ms Jinadu was dismissed.
Ms Jinadu complained that her dismissal had been unfair on the grounds that her grievance, which she said was relevant to the disciplinary case against her should have been considered before the conclusion of the disciplinary process. Her argument was unsuccessful. The fact that the grievance was not dealt with before the discipline did not alter the fact that the employer had reasonable grounds to continue with the disciplinary process.
This decision that there is no automatic principle that a dismissal will be unfair if an employer fails to postpone disciplinary proceedings so a grievance can be addressed will be welcomed by employers.
Provided the employer has acted and investigated fairly, the discipline is likely to be happening for a reason. To delay it would be to delay the inevitable. Often the grievance is not directly related to the specific issue the employee is being disciplined for so there is no reason to delay the discipline.
Even when the grievance is directly related, it can still make sense to deal with it as part of the discipline rather than halting the process. For example, if the employee says “My supervisor told me to do it (the alleged offence),and he’s always been trying to get me into trouble,” then the grievance is actually part of the employee’s defence. It may form part of further investigation the disciplining officer decides to carry out before giving a decision, but it is not a separate matter.
The Jinadu case doesn’t give employers carte blanche to never halt a discipline process when a grievance is raised. What does the grievance actually say? Is there any substance to it? Does it concern the manager who is carrying out the discipline and the way he or she is doing it?
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