An employer may be able fairly to hold a disciplinary hearing and dismiss an employee for refusing to comply with a reasonable instruction without first hearing the employee's related grievance appeal challenging the instruction.

The employees had refused to comply with an instruction, about which they had lodged a grievance, for three months and refused to attend a disciplinary hearing unless the grievance appeal was heard first. They failed to make clear that they would comply with the instruction if their grievance was rejected on appeal.

The employer's policy did not provide for a suspension of the disciplinary process where grievances were lodged and there is no requirement for a suspension in the Acas Code 2004 which applied (nor indeed in the 2009 Code currently in force).

The EAT ruled that dismissal was within the band of reasonable responses in these circumstances, given that the original grievance had been heard and the employees could have raised their concerns at the disciplinary hearing. It suggested that it would be very rare for this approach to be unreasonable, at least in the absence of clear evidence of unfairness or uncompensatable prejudice. (Samuel Smith Old Brewery v Marshall, EAT)