In the case of Jinadu v Docklands Buses Limited and others the Employment Appeal Tribunal (“EAT”) considered the question of whether an employer is obliged to put a disciplinary process on hold while an employee’s grievance is dealt with.
Ms Jinadu was a bus driver for Docklands Buses Limited (“Docklands”) whose driving was considered to be below acceptable standards. She was instructed to arrange a driving assessment. She repeatedly refused to comply with the instruction and was eventually dismissed for gross misconduct. Ms Jinadu appealed against her dismissal. The appeal hearing was adjourned to allow her take the assessment. Ultimately she did attend the assessment and was required to undergo corrective training. Following the corrective training, she failed her assessment. The appeal was reconvened and, at the reconvened hearing, Ms Jinadu made complaints about certain members of management including various complaints of discrimination. Ms Jinadu clearly believed these complaints represented a grievance (see below).
Ms Jinadu’s appeal was dismissed. The only reason that appeared to have been given by Docklands for dismissing her appeal was that she failed to display a satisfactory driving standard and that her dismissal was in the interests of public safety.
Ms Jinadu brought a claim of unfair dismissal which was dismissed by the Employment Tribunal (“ET”). She appealed to the EAT. One of Ms Jinadu’s grounds of appeal was that Docklands should have given consideration to suspending the disciplinary procedure for a short period while her grievances, raised at the reconvened hearing, were dealt with.
The EAT found in favour of Ms Jinadu on the basis that the ET had failed to make proper findings regarding the reason for her dismissal and the dismissal of her appeal.
However, in relation to her argument that the disciplinary process should have been suspended in order to deal with her grievance, the EAT rejected this unequivocally and (unhelpfully) without giving an explanation for its decision.
This decision may be helpful for employers when they are faced with grievances from employees during a disciplinary process which, if dealt with, would prolong/delay the process, increasing the drain on management time and possibly expense. However, it is important to emphasise that each case will be fact-specific and while, in this case the decision not to postpone the disciplinary process and hear Ms Jinadu’s grievance did not render the dismissal unfair, it may well be appropriate in other cases to do so.
Further, the (non-statutory) ACAS Code of Practice provides that where an employee raises a grievance during a disciplinary process the disciplinary process may be temporarily suspended in order to deal with the grievance and, where the grievance and disciplinary cases are related, it may be appropriate to deal with both issues concurrently. The (again, non-statutory) ACAS Guide accompanying the ACAS Code suggests that when an employee raises a grievance during a disciplinary meeting it may sometimes be appropriate to consider stopping the meeting and suspending the disciplinary procedure. For example, when: the grievance relates to a conflict of interest that the manager holding the disciplinary meeting is alleged to have; bias is alleged in the conduct of the disciplinary meeting; management have been selective in the evidence they have supplied to the manager holding the meeting; or there is possible discrimination.
Bearing in mind the fact-specific nature of this case, and the comments in the ACAS Code and Guide, if faced with an intervening grievance, it would be advisable for employers to record the reasons for their decision as to whether the disciplinary process should be suspended so they can show that they at least gave careful consideration to all options.