Disciplinary proceedings and Grievance
An employee who is subject to disciplinary proceedings has responded by raising a grievance. They claim that you must automatically put the disciplinary proceedings on hold until their grievance is concluded. Is this correct?
No surprise there
Having been notified that they are subject to disciplinary proceedings, many employees react to this news by raising a grievance. This could be in respect of the disciplinary proceedings, for example how the process has been handled by the employer, or about something else, such as alleged bullying and/or discrimination. Unlike grievances that are received at other times, the usual purpose behind this sort of tactic is to derail or muddy the disciplinary proceedings.
If you find yourself caught up in such a scenario, must you put the disciplinary proceedings on hold while you investigate and conclude the employee’s grievance or can you simply carry on with the disciplinary proceedings as normal?
This was a question for the Employment Appeal Tribunal (EAT) in the case of Jinadu v Docklands Buses 2015.
Jinadu (J) had been a bus driver for Docklands Buses (D). When concerns were raised about her driving standards she was instructed to arrange an assessment at D’s training centre. She repeatedly refused and during the disciplinary proceedings that followed complained that the inspector had it in for her. She was dismissed for gross misconduct but at her internal appeal the parties agreed she would attend a driving assessment. This process showed that J required some corrective training (which was undertaken) but she still failed the exam. Therefore, her dismissal for gross misconduct was upheld.
Unfair dismissal claim
J then claimed unfair dismissal at the tribunal. It dismissed her claim on the basis that she had repeatedly refused to attend the training centre for assessment and therefore the dismissal sanction imposed was within the range of reasonable responses available to D. J then took her claim to the EAT where she argued that D was obliged to automatically suspend the disciplinary proceedings once she raised a grievance but it had failed to do so.
The EAT rejected this particular argument, although J’s appeal was ultimately successful on a different point of law. This decision confirms that you do not have to automatically place disciplinary proceedings on hold if an employee responds to them by raising a grievance. That said you shouldn’t simply push on with the disciplinary proceedings regardless – always examine the nature of their grievance first.
If the subject of the grievance is independent of the disciplinary matter(s), the two can run side by side. However, if it’s about some element of the disciplinary proceedings, e.g. the impartiality of an investigator or the disciplinary chair, always investigate further before continuing.
Where the grievance is that the disciplinary proceedings are unfounded, the employee can raise this point at the disciplinary hearing – there’s no need to stop the process.
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