We frequently get asked by employers to advise on the correct course of action for them to take when an employee who is either under investigation for some alleged misconduct or who is the subject of a disciplinary process raises a grievance. Should the employer postpone the process and deal with the grievance, or should they carry on with the disciplinary process?
As so often in these situations, there is no simple answer. If the grievance is about unrelated incidents, then there is usually no reason to suspend the disciplinary process. However, where the subject matter of the grievance is related to the disciplinary issues, it might be sensible to suspend the disciplinary process until the grievance has been dealt with. However, would a refusal to suspend a disciplinary process to hear a grievance on related facts render the dismissal unfair? This was the question considered by the Employment Appeal Tribunal in Jinadu v Docklands Buses (2015).
The facts of the case were pretty straightforward, and the tactics used by the employee quite common. Mrs Jinadu was employed as a bus driver. There were a number of complaints about her driving and as a result she was subject to disciplinary proceedings. During those proceedings she raised a grievance about some of the managers involved. The company took the decision to continue with the disciplinary process and Mrs Jinadu was dismissed. She brought a claim in the Employment Tribunal for unfair dismissal, but the Tribunal held that her dismissal was fair.
Mrs Jinadu appealed to the Employment Appeal Tribunal. One of the grounds of her appeal was that the company had not suspended the disciplinary process to deal with her grievance. The Employment Appeal Tribunal rejected this. They said that there was no reason why continuing with the disciplinary process would necessarily lead to a finding of unfair dismissal, and Mrs Jinadu’s appeal failed.
Whilst this case is helpful for employers in that it makes it clear that refusing to suspend a disciplinary process in order to deal with a grievance will not in itself make the dismissal unfair, but each case will depend on its own facts. In different circumstances the refusal to suspend the disciplinary process may mean that the decision to dismiss does not fall within the band of reasonable responses test by which the Employment Tribunal will assess the fairness or otherwise of the dismissal. As always, the best approach is to seek specialist advice.
If you would like to talk through a situation you are dealing with, or if you need advice on any aspect of employment law, please contact any member of the Pure Employment Law team (01243 836840 or en[email protected]).