When an employee is invited to attend a disciplinary hearing they may try to delay matters by lodging a formal grievance and insisting that the grievance is dealt with before the disciplinary hearing takes place.

The employer is obliged to investigate any grievance and if the complaint is complex or detailed, or raises a number of matters that allegedly took place over a long period of time, it may take several weeks (or even months) for that investigation to be concluded.  In these circumstances the employer would not only have to extend any suspension (on full pay) but also suffer the potentially detrimental effect that the delay could have on the disciplinary process.

Employers are often concerned that grievances raised in such situations are not genuine and are only done to thwart the disciplinary process.  On occasion, employers simply do not have the confidence to press on with the disciplinary.

We explain to employers that whether the grievance needs to be dealt with before, during or after the disciplinary process, will depend on the facts of each case, but until recently we have not had case law that dealt with this point.  This has now changed!

In a recent case a bus driver was subjected to disciplinary proceedings because of a poor standard of driving.  During the disciplinary proceedings she made allegations about some of her managers.  She was dismissed and lost her unfair dismissal case at the employment tribunal.

She appealed on the basis (among others) that her dismissal was unfair because the employer had not put the disciplinary procedure on hold whilst the grievance about her managers had been addressed.  However, the Employment Appeal Tribunal rejected the submission that the “respondents were obliged to put the disciplinary investigations on hold until they had dealt with the appellant’s grievances”.

This judgment does not mean that in every case an employer can press on with the disciplinary process and ignore a grievance, but it is helpful because it indicates that employers are not automatically obliged to put disciplinary matters on hold just because a grievance is raised.

Employers can, therefore, have some confidence in continuing with a disciplinary before a grievance has been dealt with.  However, employers should exercise caution, particularly where the grievance complaint and the disciplinary issues overlap, as both could potentially be dealt with together at one hearing, or they can be dealt with consecutively. i.e. disciplinary hearing first followed (after a short break) by the grievance hearing or vice versa.

Reggie Lloyd
01206 217347
reggie.lloyd@birkettlong.co.uk