When an employer is going through a disciplinary process with an employee, it is not uncommon for an employee to raise a grievance about other aspects of their employment, or about persons associated with the disciplinary process, at the same time. The difficult question for employers is whether or not they need to pause the disciplinary process in order to deal with those issues, or not. The answer, as you might expect, is that the decision is very much dictated by the circumstances.
In the recent case of Jinadu v Docklands Buses Ltd and others UKEAT/0434/14, Ms Jinadu was dismissed from her position as a bus driver. A car driver had made a complaint about her driving to her manager, as a result of which CCTV footage of her driving on the day in question was viewed which showed a number of failings on her part. Ms Jinadu was asked to attend a training course at an assessment centre, which she refused to do, as a result of which she was dismissed. Prior to her disciplinary hearing she had raised grievances alleging discrimination against her on the part of the managers who had initially dealt with the complaint and conducted the fact finding investigation. Ms Jinadu’s claim of unfair dismissal to the employment tribunal failed, and she appealed that decision. One of her grounds of appeal was that her employer should have paused the disciplinary process in order to investigate and determine her complaints of discrimination first. The EAT actually found in Ms Jinadu’s favour as a result of other issues, but rejected this particular argument. It found that there were no live grievances against the manager who has hearing the disciplinary hearing, and therefore it was perfectly appropriate for the process to proceed.
Clearly, if a grievance was raised about the individual who was conducting the disciplinary process at the point the complaint was made, then an employer would be in a very different position. They might have an number of options, the most obvious being to either remove the person about whom a complaint was made and replace them with someone else, or deal with the grievance and, if it was not in the complainants favour, then proceed – although if the grievance was upheld then it might, depending on the circumstances, be very difficult to continue to allow that person to manage the disciplinary process.
Employers also need to consider the strength of the connection, if any, between the grievance raised and the disciplinary issues being considered. If there is no real connection, an employer may feel that it is appropriate to consider the issues either parallel to, or at the conclusion of the disciplinary process. They may think it unnecessary to consider, or wait for, the grievance issues to be concluded before making any decision on the disciplinary issues. More often however, there is a direct connection – hence the reason why the employee has brought them up at that time. Sometimes the issues are interlinked; take a scenario where an employer is dealing with allegations of misconduct made by an employee’s work colleagues, and it is suggested that they have maliciously fabricated or exaggerated these and other issues for their own gain, or for discriminatory reasons. In those situations employers may feel that the most sensible way to proceed is to effectively hear the disciplinary and grievance issues concurrently, utilising the same personnel to do so, as the outcomes of both rely heavily on the same material.
Whichever course of action an employer takes, it is always important to bear in mind that the most essential aspect is to communicate that decision clearly to an employee so that they are fully aware of the process that will be followed.
Safia Tharoo, Barrister, 42 Bedford Row, London