Acumen News & Events

17 May 2010

What happens when disciplinary and grievance proceedures overlap?

How do employers manage the interplay of the grievance and disciplinary procedures?

Scenarios regularly arise where disciplinary and grievance procedures overlap. Some employers may suggest that in such circumstances, grievances are only lodged with the objective of delaying a disciplinary process. Even so, when such a scenario does occur, should the disciplinary process be adjourned or should it continue and, if so, on what basis?

The first step is that Employers must give consideration to the specific nature of the issue being raised as the employee may have called it a “grievance” but when looked at closer it may actually be:

• a representation that should be considered by the employer when deciding the result of the disciplinary process
• about a disciplinary decision already made and, therefore, constitute an “appeal” rather than a separate grievance
• entirely unrelated to the disciplinary process.

If the two processes do genuinely overlap, what is the best way to proceed?

Many people follow the ACAS code of practice not just because it provides useful guidance but also because breach of the code can lead to adjustments of compensation in successful unfair dismissal and other claims of up to 25 per cent. The code confirms that when such a situation arises and “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.”

For more specific guidance, consideration should be given to the Acas guide, Discipline and Grievances at Work, which states that it may be appropriate to suspend the disciplinary procedure where:

• the grievance relates to an alleged conflict of interest on the part of the manager holding the disciplinary meeting
• bias is alleged in the conduct of the disciplinary meeting
• the organisation has been selective in the evidence it has supplied to the manager holding the meeting, or
• there is possible discrimination.

Taking all this into consideration the employer undoubtedly has four possible options:

Firstly the disciplinary process continues despite the grievance being raised, and the grievance is dealt with separately but at the same time as the disciplinary process

Secondly the disciplinary process is adjourned whilst the grievance process is completed.

Thirdly the disciplinary process is conducted by a different person, where practicable, if the grievance concerns the person conducting it, while the grievance is considered separately.

Finally a recent EAT decision has provided a further option. In Samuel Smith Old Brewery (Tadcaster) v (1) F Marshall (2) P Marshall the subject of the grievance preceded the disciplinary process rather than the other way round.

The Claimants ran a pub near Doncaster on behalf of the brewery. The brewery asked the Claimants to cut staff hours from 84 hours to 45 as a result of difficult trading conditions. The couple refused to implement this measure and therefore raised a grievance on the grounds that such a change would mean that they themselves would have to work more hours.   

The grievance meeting took place and the brewery confirmed the instruction to reduce staff hours. The Claimants failed to comply and appealed this decision. The brewery then brought disciplinary proceedings against the couple. The couple failed to turn up for the disciplinary hearing despite being provided with various dates. Once arranged the hearing took place a week before their grievance appeal was due to be heard.

At the hearing the couple were dismissed for gross misconduct. The employment tribunal concluded that dismissal was within the range of reasonable responses but considered that the managers had been deprived of their rights to pursue a grievance appeal and had, therefore, been unfairly dismissed.

On appeal, the EAT could not see see how the decision to dismiss for a failure to comply with reasonable instructions could be outside the range of reasonable responses just because the grievance appeal was delayed. As there was no absolute rule that a disciplinary hearing could not proceed until a related grievance had been completed the tribunal’s decision was overturned.

Would you like some advice regarding the grievance and disciplinary procedures operated by your Company? Call us today to discuss your options on 01244 357 211.