Should raising a grievance delay the disciplinary process

2015-06-08 Philip posted:

It is a common tactic for employees faced with a disciplinary hearing or performance improvement process to attempt to stall it by raising a grievance with their employer. The ACAS Guide to the Code of Practice states that an employer should consider adjourning the process when an employee raises a grievance or alleges a conflict of interest with those conducting the disciplinary procedure.

Does this mean that whenever a grievance is submitted the disciplinary or capability review process must be paused? No. The ACAS Guide simply says that the employer should “consider” stopping the meeting. The ACAS Code of Practice itself states that, where the grievance and disciplinary cases are related, it may be appropriate to deal with both issues concurrently.

A recent Employment Appeal Tribunal case of Jinadu v Dockland Buses Limited has considered just a situation where an employee was disciplined following a refusal to undertake performance training. She had stated that the management were “against me” and that she would “draw blood” before going on training. The EAT said the employer was correct not to postpone the disciplinary process for a grievance hearing. So what is the position when an employee submits a grievance during a disciplinary or performance process?

If the employee’s complaint is no more than “management is wrong” or “they have got it in for me”, then there is no need to hold a grievance hearing at all. The employee’s comments are all part of their defence to the charges against them.

However, if the employee states that the allegations are being made because they are being discriminated against - owing to a protected characteristic under the Equality Act, then consider whether there seems to be any substance to the complaint. If the evidence is persuasive then halt the disciplinary process and run a full grievance investigation first.

In some circumstances you can inform the employee that a grievance will be considered at a hearing and if not upheld, will then continue straight into the scheduled disciplinary hearing. If there is substance and persuasive evidence of discrimination then the disciplinary hearing should be cancelled.

In summary, do not be deterred by ‘knee jerk’ grievance allegations unless they have substance to them.

Telephone us on 01225 632240 to discuss how we can help you with your grievance or disciplinary issues.

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Client on 17th March 2015