EMPLOYMENT NEWS: Concurrent Disciplinary and Grievance Procedures

The Statutory Dispute Resolution Procedures were repealed on 6 April 2009 and replaced with the ACAS Code. The statutory procedures provided many technical challenges and problems for employers where there were overlapping disciplinary and grievance issues. The new ACAS Code has done little to clarify the issue and offers limited guidance. It provides:”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.”

Without clear cut guidance, demonstrating reasonableness in handling overlapping disciplinary and grievance issues is key. Employers should also be mindful of the potential uplift in compensation of up to 25% if they are found to not have reasonably followed the ACAS Code.

We recommend that employers should adopt a common sense approach and consider each case on an individual basis when deciding how to approach the following scenarios:

Disciplinary and grievance are related

Where the subject matter of a disciplinary and grievance are related, it is sensible to follow ACAS guidance and deal with both matters concurrently. In practice this means it is possible to hold one meeting and use one manager to deal with both matters. For example, an employee is facing disciplinary action for short term intermittent absences but the employee wishes to raise a grievance because he believes that the way the sickness absence policy is being applied to him is discriminatory.

However, we would recommend that where the grievance essentially impugns the integrity of the dismissal manager, challenges the disciplinary procedure itself or alleges discrimination in the way the procedure is being carried out, it would be very sensible to suspend the disciplinary hearing until the grievance is dealt with.

Disciplinary and grievance are totally unrelated

Where the disciplinary and grievance are totally unrelated, it is possible to continue with the disciplinary and then investigate the grievance if such action is still necessary.

It may alternatively be appropriate to deal with both issues separately but run both the disciplinary and grievance procedures concurrently. For example, during the course of disciplinary action for a conduct issue, an employee raises a grievance about harassment unrelated to the disciplinary. A separate grievance meeting should be organised as soon as possible separately to the disciplinary meeting. Both procedures can then run alongside one another where the outcome of both could be communicated simultaneously.

Grievance appeal has been raised but employee’s actions necessitate disciplinary action being taken prior to concluding grievance appeal

This is a more unusual scenario and has been the subject of a unique judgment.

The recent case of Samuel Smith Old Brewery (Tadcaster) v Marshall and another UKEAT/0488/09 set out that employers do not always have to conclude grievance appeals before taking the decision to dismiss an employee. The case sets out a test that “it will only be in the rarest of cases where it will be unreasonable for an employer to continue with disciplinary proceedings before hearing an employee’s grievance appeal. Such rare cases include where there is evidence of unfairness or uncompensatable prejudice.” The EAT also made reference to clauses in disciplinary procedures regarding “status quo” or “standstill” provisions in such scenarios.

Note however that this case deals specifically with grievance appeals. It involves unusual circumstances where an employee continued to refuse to follow instructions after a grievance meeting had been held. As such the test created by the EAT will be limited to the facts of this case and we recommend that employers should treat the principles set out in this case with caution.

Summary

Deciding the most appropriate course of action can be very confusing. If disciplinary and grievance proceedings are related, employers must make a judgment call when deciding the most suitable and reasonable course of action. Each and every case will turn on the individual facts. Taking an objective approach is necessary and demonstrating reasonableness is crucial to defend any potential claims in an Employment Tribunal.

If you have any specific queries relating to the content of this article or would like additional information on the issues covered please contact Ranjit Dhindsa.