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The inevitable grievance - overlapping disciplinary and grievances

What can you do when an employee raises a grievance whilst they are already undergoing a disciplinary process?

There are three options:

  • Put the disciplinary process on hold;
  • Run the two processes concurrently, side by side; or
  • Deal with the issues as part of the same process.

A recent decision by the Employment Appeal Tribunal (EAT) offers reassurance to employers. The EAT rejected the argument that an employer was obliged to put the disciplinary processes on hold until after they had dealt with an employee's grievances. Whilst this case did not solely revolve around this issue, the decision is helpful and reassuring for employers faced with the inevitable barrage of grievances that often occurs when a disciplinary process is underway. 

Background

In this case, a bus driver was subject to disciplinary proceedings following complaints of dangerous driving. She raised a grievance about the managers involved but the employer continued with the disciplinary process and dismissed her. She appealed, arguing that the dismissal was unfair because the disciplinary proceedings had not been put on hold after she had raised her grievance. Her appeal was not upheld. This was despite her employer’s grievance process expressly stating that consideration should be given to suspending the disciplinary procedure whilst grievances are dealt with.

What should employers do?

As always, the facts will need to be carefully considered and ultimately it is up to the employer to decide how to continue. The ACAS Code of Practice provides limited guidance saying: “Where an employee raises a grievance during a disciplinary process the disciplinary process may be temporarily suspended in order to deal with the grievance. Where the grievance and disciplinary cases are related it may be appropriate to deal with both issues concurrently.”

It is often a difficult choice for employers who do not wish to delay a serious disciplinary investigation for an indefinite length of time, when witness memory may fade, in order to consider a protracted grievance process. However if the grievance isn't investigated at all, then this will be a breach of the ACAS Code of Practice and a tribunal could consider this when assessing compensation and the fairness of the dismissal. 

In short, if a grievance is raised, carefully consider the facts and nature of the allegations involved:

  • If the grievance allegations relate to the disciplinary process itself, such as an allegation of a conflict of interest or bias against the disciplinary hearing officer, suspend the disciplinary process and investigate the grievance.
  • If the grievance is entirely unrelated to the disciplinary process, don't suspend the disciplinary procedure but investigate the grievance in a separate process alongside it
  • If, however, the issues relate to the same facts or the grievance is raised in such a way to be a defence to the disciplinary investigation, deal with the grievance within the disciplinary process. 

Take time to consider the grievance that has been raised. Carefully decide what action you will take and set this out in writing to the employee. Make a note of the reasons why you decided to take the action you did. This will not only help the employee understand the action being taken, but it will also assist a tribunal should a later claim be made.

For more on the decision, click here.

This publication is intended for general guidance and represents our understanding of the relevant law and practice as at May 2015. Specific advice should be sought for specific cases; we cannot be held responsible for any action (or decision not to take action) made in reliance upon the content of this publication.
   
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