You invite an employee to a disciplinary hearing on charges of misconduct. The employee is unhappy with the situation and starts raising grievances about their manager and treatment. It’s a familiar tale. But, what do you do, press pause on the disciplinary hearing and resolve the grievance first of all? This will delay the disciplinary hearing and potentially complicated matters. Or can you fairly dismiss an employee without concluding a grievance process?
This issue was addressed in the recent Employment Appeal Tribunal (EAT) case of Jinadu v Dockland Buses. In this case Ms Jinadu faced a disciplinary hearing to deal with allegations of misconduct in her job as a London bus driver. There was CCTV footage that showed her clipping kerbs, running a red light and pulling into the path of two cars. In order to assess whether Ms Jinadu’s driving was of an acceptable standard she was required to attend a driving assessment course at her employer’s in-house training centre. Ms Jinadu refused to attend the driver assessment and was dismissed.
Ms Jinadu then appealed against her dismissal. The basis of her appeal, included grievances that her manager was “against her”; she was being bullied and intimidated into attending driver training; the driver who raised the complaints against her was drunk; and her employer should not be allowed to watch CCTV footage of her.
The appeal hearing took the form of a complete re-hearing. Ms Jinadu was, again, offered the chance to attend the driver assessment. She finally did so and failed. The appeal hearing was adjourned for Ms Jinadu to undertake further driver training (with a view to her being able to re-take and pass the driver assessment). Unfortunately, even following the corrective training, Ms Jinadu failed the assessment.
The employment tribunal found Ms Jinadu’s dismissal to be fair. She appealed to the EAT against the finding that she had not been unfairly dismissed. One of the grounds for the appeal was that Dockland Buses had upheld her dismissal at the appeal hearing without considering the grievances she put forward. The EAT dismissed this ground of appeal saying it rejected the submission that the employer was obliged to put the disciplinary investigation on hold until they had dealt with Ms Jinadu’s grievances.
This case is a helpful reminder to employers that there is no general rule that a dismissal will be unfair if an employer does not deal with a grievance made during the disciplinary process. However, in employment law each case may turn on its own facts and there will be instances when it is necessary to deal with substantive grievances that may have an impact on dismissal decision before a fair dismissal can be carried out.
So, employers should not assume this is a green light to make a disciplinary dismissal decision without concluding a grievance procedure in every instance. In some cases it may be dangerous to do so and could result in an Employment Tribunal finding there was an unfair dismissal.
The Stephens Scown employment team works in partnership with organisations to improve their HR practices and advise on employment issues. To discuss this or any other HR issue call 01392 210700 or email@example.com