You have a problem employee. Either they have committed an act of misconduct, or they are guilty of poor performance. You resolve to carry out a disciplinary hearing. Within the disciplinary proceedings, the employee raises a grievance. Do you have to suspend the disciplinary process whilst the grievance is considered? It appears that the answer is no, following the Employment Appeal Decision of Mr Justice Supperstone in the case of Jinadu v Docklands Buses Ltd.
The decision is helpful, because the ACAS code on Discipline and Grievance does not give a definitive answer. At paragraph 46 it says:
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 facts of Jinadu were as follows:
Ms Jinadu was employed as a bus driver by Docklands Buses Ltd. Her driving was considered to be below an acceptable standard. For example, there was reference to her pulling out with cars still passing, one-hand driving, clipping kerbs, showing poor lane discipline, running a red light and pulling into the path of two cars. She was instructed to arrange to have a driving assessment at the employer’s in-house training centre. She repeatedly refused to comply with the instruction and was dismissed for gross misconduct.
At the disciplinary hearing, she complained of her Manager using her position of authority to bully her. She appealed against her dismissal and the appeal was adjourned for her to attend the training centre. She did attend, but following the corrective training she took an assessment, which she failed. The appeal was reconvened and the dismissal was confirmed. She brought a claim for unfair dismissal in the Employment Tribunal and lost. She appealed to the Employment Appeal Tribunal. One of the grounds advanced for her appeal was that the disciplinary process should have been suspended whilst the grievance was investigated. Mr Justice Supperstone was able to deal with this in fairly short order:
I reject [the] submission that the Respondents were obliged to put the disciplinary investigation on hold until they had dealt with the Appellant’s grievances.
The case was sent back to the Employment Tribunal for further consideration as Ms Jinadu was successful on one of her other grounds of appeal.
Comment: the decision that an employer need not suspend a disciplinary process to investigate a grievance is sensible because otherwise an employee could derail and significantly delay a disciplinary process by the simple expedient of raising grievances against their employer.
To discuss this or for further information, please get in touch with myself in Bedford on 01234 270600 or by email at firstname.lastname@example.org, or in Cambridge please contact Nick Sayer on 01223 411421(email@example.com), and in Milton Keynes, Maria Gallucci (firstname.lastname@example.org) on 01908 202150.