Grievances raised during disciplinary proceedings

Added On: 21st September 2010

Grievances raised during disciplinary proceedings

What should you do when an employee raises a grievance at the same time as dismissal or disciplinary action is proposed? Deal with the grievance first or press on with the dismissal or disciplinary proceedings regardless? According to the EAT, there is nothing that says employers must necessarily complete all or any of the grievance procedure (including any appeal) before the dismissal or disciplinary hearing can take place.

In Samuel Smith Old Brewery v Marshal,l Mr and Mrs Marshall were managers of one of the Brewery’s pubs. In accordance with the terms of their Management Agreement with the Brewery they were instructed to reduce their staff’s working hours in response to difficult trading conditions. They refused to do so, partly on the basis this would increase their own working hours, and raised a grievance about the instruction. This was rejected and they lodged an appeal. Before the appeal was heard they were invited to attend a disciplinary hearing on the basis that their refusal to implement the change in hours as instructed constituted gross misconduct. The Marshalls refused to attend the disciplinary hearing on the grounds that their grievance appeal was still outstanding and that they had been advised that the Brewery “could not do that to them” in those circumstances. The hearing went ahead in their absence and they were both dismissed for gross misconduct. Their grievance appeal was also subsequently rejected. They brought claims for unfair dismissal, arguing primarily that the Brewery should not have gone ahead with the disciplinary hearing until the appeal procedure had been concluded.

The Tribunal upheld their claim but its decision was overturned by the EAT. It said that: “it is only in the rarest of cases that it would be outside the range of reasonable responses for an employer to proceed with a disciplinary process before hearing a grievance appeal, at least in the absence of some clear evidence of unfairness or uncompensatable prejudice”.

Employers should adopt a pragmatic approach, especially when dealing with overlapping disciplinary and grievance issues. No two cases will be identical but it is possible to split these circumstances into three main categories:

(i) If a grievance is totally unrelated to the disciplinary allegations it would normally be safe to progress with the disciplinary matter and deal with the grievance at a later stage if it still then had any meaning;

(ii) If the grievance essentially constitutes the defence to the proposed disciplinary charges or dismissal it is possible to deal with the two things at the same time;

(iii) If, however, the grievance seeks to impugn the integrity of the individual making the disciplinary or dismissal decision then the safest course of action will be to adjourn the disciplinary hearing until the grievance has been resolved – and this will probably mean concluding the appeal too.

More information on our discipline and grievance service can be found here:

Discipline & Grievance