Could UK Employers Risk an Unfair Dismissal Claim if They Do Not Pause the Process?
One issue which can trouble HR professionals is how to deal with a grievance lodged by an employee during the course of a disciplinary process. Should the disciplinary procedure be put on hold until the grievance process is concluded? Will failing to pause the disciplinary procedure risk a subsequent dismissal being unfair?
A recent case, Jinadu v Docklands Buses, provides a useful opportunity to consider how employers should react when dealing with this situation.
Ms Jinadu was a bus driver. The bus company viewed her driving as below an acceptable standard and instructed her to arrange a driving assessment at its in-house training centre. She repeatedly refused to comply with this instruction and was dismissed for gross misconduct as a result. She appealed against her dismissal, and the appeal hearing was adjourned to allow her the opportunity to attend the training centre and take the assessment. Eventually she did attend, and completed some required corrective training, but then failed the assessment. Her appeal against dismissal was then reconvened and was unsuccessful. She claimed unfair dismissal.
An employment tribunal dismissed her claim on the basis that she had repeatedly refused to attend the training centre and the sanction of dismissal was within the range of reasonable responses which a reasonable employer could have made. Her dismissal was, therefore, fair. Ms Jinadu appealed against the tribunal’s decision.
The Employment Appeal Tribunal allowed her appeal. The tribunal had failed to make proper findings about the employer’s reasons for dismissing Ms Jinadu’s appeal and the reasonableness of her dismissal in the light of those reasons. The EAT rejected (pretty much out of hand and without a detailed analysis of the situation) the claimant’s argument that the tribunal decision failed to take into account properly that the employers procedures required the disciplinary process to have been paused, pending the outcome of Ms Jinadu’s grievance.
As the EAT’s summary of its decision stated, the only reason the employer had given for rejecting Ms Jinadu’s appeal against her dismissal was that she had failed to show a satisfactory driving standard and her dismissal was in the interest of public safety. However it appears that during the disciplinary procedure she had complained about her supervisor and the operating manager of her depot.
This decision does not address in detail how employers should proceed when confronted by a grievance from an employee during a disciplinary procedure, which is accompanied by a demand that the disciplinary process is paused pending a resolution of that grievance.
Employers may, of course, be concerned that the grievance has been lodged tactically and that dealing with it – and potentially a subsequent appeal - will elongate and complicate the disciplinary process.
Before deciding what to do, employers should in all circumstances consider the true nature of the grievance. It may be about a matter entirely separate from the disciplinary process, in which case the employer may be able to decide the disciplinary process can continue and the grievance should be addressed in parallel and at its own speed.
A grievance may address the subject matter of the disciplinary process, in which case (depending on the stage reached in that procedure) the employer may be able to decide that it would be more appropriate to treat it as a submission to the disciplinary process, or as an appeal against the eventual disciplinary decision. A grievance complaining that it is inappropriate for the person conducting the disciplinary procedure to take a disciplinary decision is the trickiest situation for employers to deal with.
These issues require careful consideration in each particular situation, but employers should take the view that there is no automatic right for an employee to pause a disciplinary when a grievance has been lodged.
This article was first published by CIPD in May 2015.