If you have raised a disciplinary procedure against an employee, they can temporarily suspend the procedure by raising a grievance claim against your company. Legal expert Laura Kearsley explains how to deal with the situation efficiently.
An employee in my restaurant has raised a grievance against me after I started a disciplinary process to dismiss her for gross misconduct. Do I have to hear out the grievance before I can dismiss her?
Under current UK rules, dismissal of an employee with more than a year's service needs to be fair. A dismissal will be legally fair if the employer has reached a decision that is in the band of reasonable responses open to that employer in dealing with the employee concerned.
The employer will also be governed by certain procedural expectations, which are set down by case law and the Acas Code of Practice on disciplinary and grievance procedures. The Acas Code simply states that where an employee raises a grievance during a disciplinary process, the disciplinary process may be temporarily suspended in order to deal with the grievance. The Code goes on to say that where the grievance and disciplinary cases are related, it may be appropriate to deal with both issues concurrently.
A recent case, Samuel Smith Old Brewery v Marshall, has seen the Employment Appeal Tribunal state that it was not unfair for an employer to proceed with dismissing an employee for gross misconduct when he had an appeal against the outcome of a grievance pending. There is, therefore, scope for the employer to do whatever it considers reasonable in the circumstances. This will most likely depend on the nature of the employee's grievance. For example, if the employee's grievance is completely unrelated to the ongoing disciplinary then this could be dealt with concurrently by a separate manager.
The difficulty comes when the grievance relates to the manager dealing with the disciplinary or the disciplinary process itself. In these circumstances, the employer will have to give serious consideration to whether the disciplinary process can proceed without the grievance issues being first resolved.
The employer should consider whether the two matters could be rolled into one hearing, whether a new investigating manager or disciplinary manager could be appointed to remove any difficulties and allow the disciplinary process to proceed, and whether the grievance could be dealt with promptly in order to remove any objections to the disciplinary continuing.
â- Where possible, the employer should get the employee or their representative to agree to the proposed course of action in terms of dealing with the grievance and disciplinary issues. This will make it much more difficult for the employee to argue that they have been prejudiced by the course of action chosen by the employer.
â- The employer must ensure that the employee receives a written outcome for both sets of procedures and also a right of appeal on both any disciplinary action and any grievance.
Wily employees who sense that their days are numbered may well try to use the grievance procedure in an attempt to postpone the inevitable. In these circumstances, the employer needs to deal with the grievance robustly and promptly to prevent any damage to what would otherwise be a strong defence to an unfair dismissal claim.
Another tactic often used by employees in these circumstances is sickness absence. In these circumstances, employers should use occupational health advisors, company sick pay policies and, if necessary, deal with issues in writing, as practical measures to ensure that disciplinary matters are progressed in a timely and inexpensive fashion.
Laura Kearsley is an associate at Weightmans LLP