Do you ditch the disciplinary, to go through the grievance?

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Posted in:HR and Employment, Litigation|May 11, 2015 | Join the mailing list

What should you do as an employer if a member of your staff is the subject of an ongoing disciplinary procedure, but then they submit a grievance? Do you have to pause the disciplinary process while you deal with the grievance, or can you both run concurrently?
The recent Employment Appeal Tribunal (EAT) case of Jinadu v Docklands Buses dealt with exactly this issue.

The Employment Tribunal judgment in that case referred to a car driver complaining about the conduct of a London bus driver, Ms Jinadu, while on her bus route. The incident was captured on CCTV which, amongst other things, was reported to show Ms Jinadu running
a red light and pulling into the path of two cars. The CCTV footage was reviewed by the employer’s accident prevention supervisor and Ms Jinadu’s driving was stated to be below an acceptable standard. As a result, Ms Jinadu was told by her employer to have
a driving assessment at the employer’s in-house training centre.  

According to the Tribunal judgment, Ms Jinadu refused to attend the driving assessment course and the matter therefore moved on to a disciplinary hearing. At the hearing, when Ms Jinadu was again asked to attend the training school, she remained opposed to
going.

The Tribunal judgment also recorded that during the course of the disciplinary hearing Ms Jinadu raised a number of grievances, alleging that her manager was “against her”, that the man complaining of her driving in the first place was drunk and that her employer
should not be allowed to watch CCTV footage of her.

Docklands Buses dismissed Ms Jinadu on the same day as the disciplinary hearing and did so without dealing with the alleged grievances, as she had “failed to comply with a clear instruction to attend the training school without good reason, which was deemed
gross misconduct”.

The Employment Tribunal decided in its judgment that Docklands had acted fairly in dismissing Ms Jinadu and concluded that “the sanction or penalty of dismissal lay within the band of reasonable responses a reasonable employer might have adopted, even allowing
for [Ms Jinadu’s] length of service”. The Tribunal also noted that “insubordination is listed as an item of gross misconduct”.

The EAT turned down Ms Jinadu’s appeal against the Employment Tribunal’s finding of fair dismissal and rejected the argument put forward by her representative that Docklands Buses should have put the disciplinary process on hold until they had dealt with Ms
Jinadu’s grievances.  The EAT noted that it was a Mr Russell who conducted the disciplinary hearing and that Ms Jinadu had not raised any grievance in relation to him, even if she had raised grievances about her manager and about the operational manager.

The case shows that as long as a disciplinary procedure is conducted properly and fairly, there is no general rule that a decision to dismiss will be unfair if the employer didn’t pause the disciplinary process in order to look into any grievances raised during
the process. As is so often the case with employment law however, each particular case will depend upon its facts and whether it’s necessary to pause the disciplinary procedure will depend upon how linked the possible outcome of the grievance is to the possible
outcome of the disciplinary process. A substantive and genuine grievance raised during a disciplinary procedure that may have a bearing on the fairness of the disciplinary outcome, would present greater difficulties for an employer if it failed to pause the
disciplinary in order to deal with the grievance.  

For more information about any of the above or for practical commercial advice on this or any other aspect of employment law, please contact
Kim Freeman-Smith of the Berg Employment Team on 0161 833 9211 or email her at
kimf@berg.co.uk.

Follow us on Twitter: @Berg_HR

(The information and opinions contained in this article are not intended to be comprehensive, nor to provide legal advice. No responsibility for its accuracy or correctness is assumed by Berg or any of its partners or employees. Professional legal advice should
be obtained before taking, or refraining from taking, any action as a result of this article.)

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