Must we 'put the brakes' on disciplinary proceedings to deal with a grievance?
Many of you will know how frustrating it can be when an employee attends a disciplinary meeting only to raise complaints about managers or…
Many of you will know how frustrating it can be when an employee attends a disciplinary meeting only to raise complaints about managers or colleagues. We frequently receive queries about how best to proceed. Do you need to put the disciplinary on hold whist the grievance is dealt with or is it acceptable to continue despite the complaint?
The Employment Appeal Tribunal offered some guidance on this in the recent case of Jinadu v Docklands Buses.
The Claimant in this case, Mrs Jinadu, was employed as a bus driver. A complaint was received from a member of the public regarding the standard of her driving. An Accident Prevention Supervisor’s report and CCTV footage viewed by her employer revealed some serious failings such as the Claimant pulling out with cars still passing, one-handed driving, clipping kerbs and running a red light.
In light of this her driving was considered to be below an acceptable standard and she was instructed by Mr Dalton, the Operating Manager of her garage, to attend a driving assessment at the employer’s in-house training centre. After repeated refusal to attend the training centre she was invited to attend a disciplinary hearing and warned that one outcome could be her dismissal.
At the meeting Mrs Jinadu still adamantly refused to attend training school. She further alleged that the ‘Inspector who reported [her] was against her’ and alleged that, in instructing her to attend training, Mr Dalton was using his position of authority to ‘bully’ her and was making her a ‘scapegoat’.
Despite the complaints Mrs Jinadu had raised, the employer continued with the disciplinary proceedings and ultimately dismissed her. The Employment Tribunal that first heard the case held that her dismissal was fair.
The Claimant appealed to the EAT. One of her grounds of appeal was that it was unfair for her employer to push ahead with the disciplinary proceedings whilst her grievances remained unresolved.
The EAT emphatically rejected the Claimant’s argument that the company were obliged to put the disciplinary investigation on hold until it had dealt with her grievances.
The Judge noted in particular that the disciplinary itself was conducted by a different manager, Mr Russell, against whom the Claimant had no complaints. The fact that she had raised a complaint about her operational manager (amongst others) did not in this case mean that it was necessary in the interests of fairness to adjourn the disciplinary hearing.
The EAT also held that the decision to dismiss the Claimant for her refusal to attend training was reasonable in all the circumstances. However her appeal was ultimately successful, as the reasons for the rejection of her internal appeal against dismissal had become muddled and she had not been issued with a written appeal outcome.
To some extent this is an encouraging decision for employers. It makes clear that there is no general rule that dismissal will be unfair where an employer chooses to proceed with disciplinary proceedings rather than adjourning to separately consider a grievance.
However, unfortunately, the EAT does not set out its reasoning for this conclusion, rejecting the Claimant’s argument on this point in a single sentence. This rather limits the practical utility of this Judgment in helping you make day to day decisions.
This is a question where every case depends very much on its facts. There will certainly be some circumstances in which putting disciplinary proceedings on hold to deal with an employee complaint will be the fairest and most logical option. Ask yourself whether the complaint raised will genuinely have a bearing on the fairness of the disciplinary outcome? Is the employee challenging the impartiality or integrity of the fact finding or disciplinary investigations or alleging that the evidence to hand is incomplete? If so, it is more likely to be appropriate to tackle these issues before proceeding.
However, in most cases where the complaint raised relates to the conduct issue under consideration, it will usually be acceptable to deal with both concurrently and respond to the grievance as part as part of a full and proper disciplinary investigation. For the avoidance of doubt it is advisable to address the employee’s complaint directly in your written decision, possibly separating the conclusions within the decision letter.
Whether or not to suspend a disciplinary to hear a grievance can be a tricky judgement call. We are always happy to advise you if you find yourselves in this difficult position.