It is a common tactic for an employee faced with a disciplinary or performance process to attempt to stall it by raising a grievance. For example, the ACAS Guide to the Code of Practice states that a company should consider adjourning the process when an employee alleges a conflict of interest with the disciplinary manager, bias or possible discrimination.
Does this mean that whenever a grievance is submitted the disciplinary process must be paused? No it does not. The ACAS Guide simply says that the company should “consider” stopping the meeting. The ACAS Code of Practice itself states that, where the grievance and disciplinary cases are related, it may be appropriate to deal with both issues concurrently.
A recent Employment Appeal Tribunal case (Jinadu v Dockland Buses Limited) has considered a case where an employee was disciplined following a refusal to undertake performance training. She had stated that the management were “against me” and that she would “draw blood” before going on training. The EAT said the employer was correct not to postpone the disciplinary process for a grievance hearing.
So what is the position when an employee puts in a grievance during a disciplinary or performance process?
- If the employee’s complaint is no more than “Management is wrong” or “They have got it in for me”, then there is no need to hold a grievance hearing at all. The employee’s comments are all part of their defence to the charges against them.
- If the employee states that the allegations are being made because of a wider dislike owing to a protected characteristic under the Equality Act, then assess whether there seems to be any substance to the complaint. If not:
- a) State that, prior to the disciplinary hearing taking place, management will hear the grievance of discrimination and assess whether it has substance or whether the meeting should then continue straight into the scheduled disciplinary one
- b) If there is substance and persuasive evidence of discrimination, then adjourn the disciplinary process and first run a full grievance one.
In summary, do not be deterred by knee jerk grievance allegations unless they have substance to them.