24 July 2015 by

Postpone the disciplinary procedure – I need to raise a grievance!!

This scenario is one which many employers face when commencing a disciplinary procedure.  The key question to consider is whether employers are obliged to adjourn disciplinary hearings just because a grievance has been raised. 

The answer is that there is no set legal requirement. Generally, it is at the employer’s discretion whether or not to adjourn the disciplinary hearing, and will usually depend on the issues raised in the grievance. Where they relate to the disciplinary process i.e. the employee is concerned about the reasons for the disciplinary hearing, the person carrying out the hearing or the procedure itself, the employer may choose to deal with the grievance at the same time. Where, however, the grievance raises new and/or unrelated issues, it may be more appropriate to delay the disciplinary hearing or to have a separate grievance procedure running simultaneously, or at a later stage, to deal with the relevant issues. 

Whatever the case may be, employers should always handle disciplinary issues and grievances in a fair and reasonable manner, and be mindful to follow their own company policy and the ACAS Code of Practice on Disciplinary and Grievance Procedure in relation to misconduct and poor performance cases. This will facilitate better employee/employer relations and should avoid employers facing claims for unfair dismissal. More importantly, unreasonably failing to follow the ACAS Code can affect the level of compensation awarded to employees, as the Tribunal has the discretion to grant a 25% uplift on the award in such cases. 

In the recent case of Jinadu v Docklands Buses Ltd and others UKEAT/0434/14, a complaint was raised suggesting that the employee’s driving was unacceptable. CCTV footage showed that she pulled out into the road directly into the path of two cars, drove with one hand, went through a red light, clipped kerbs and showed poor lane discipline. In the interest of public safety, her employer asked her to attend a driving assessment and she repeatedly refused. She raised a grievance that she was being bullied by her manager and discriminated against. Nevertheless, she was subsequently dismissed for gross misconduct after finally attending the driving assessment and failing. The Employment Appeals Tribunal rejected her argument that the disciplinary procedure should have been postponed in order to deal with her grievance.

In summary, the lack of legislation and ACAS guidance in relation to handling disciplinary and grievances together shows that employers are given wide discretion to deal with matters on a case by case basis. In such circumstances, this can result in employers not following the correct procedures.

For further advice on following a disciplinary and/or a grievance procedure, or on any other employment related issues, please contact one of our solicitors in the Employment team here.

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