Overlapping grievances and disciplinary procedures

What should employers do if the subject of a disciplinary process raises a grievance?

The subject matter of a disciplinary and grievance may overlap, and therefore it is not uncommon for an employer to find that an employee will raise a grievance during a disciplinary process.

This might be done for a variety of reasons. It may be that there is a genuine concern about the way the process is being conducted or about someone involved in it, or it could be a mechanism used by an employee to delay the outcome of a disciplinary decision, particularly if they are facing dismissal. Failure to deal with a grievance before concluding a disciplinary could result in an unfair dismissal.

Below, we consider the options for an employer and how to deal with these situations.

Check contracts, policies and relevant ACAS publications

It is always a good idea to start by reviewing your employment contracts and policies. It is not uncommon for employers to set out in their  disciplinary policy that a grievance may be raised whilst a disciplinary process is ongoing and how it should be dealt with.

Written contractual provisions on these issues are less likely, but it is always good practice to check. It is also worth noting that there are implied terms in employment contracts that:

• employers will ‘reasonably and promptly afford a reasonable opportunity to its employees to obtain redress of any grievance’, and
• disciplinary processes will be conducted fairly.

The ACAS Code provides some guidance on overlapping grievance and disciplinaries, referring to the fact that a disciplinary may be suspended to allow for a grievance to be dealt with, or even for them to be dealt with alongside one another where the issues are related to the disciplinary.

ACAS guidance provides some examples of when it may be appropriate to suspend a disciplinary process to deal with a grievance, for example where allegations concern:

• possible discrimination
• a conflict of interest or bias that affects the person overseeing the disciplinary or the disciplinary’s proceedings
• there are issues regarding the selection and use of evidence as part of the process (for example, evidence which points to the innocence of an accused party has not been searched for or referred to)

No guidance is given on the length of time an employer should suspend a disciplinary process to deal with a grievance and employers will need to gauge for themselves what is required taking into consideration the following points.

Is a suspension of proceedings necessary?

A suspension of disciplinary proceedings should only be considered if the grievance raises serious risks around the fairness of the disciplinary process to the extent it  would call the process and/ or outcome into question.

While employers have an obligation under employment law   to address a grievance, unless it affects the disciplinary process in the ways outlined in the ACAS guidance set out above, a grievance can always be addressed after a disciplinary process has concluded, even if this is after employment has been terminated.

Does the grievance have to be completed before a disciplinary decision is made?

Even where a decision is taken to pause a disciplinary process or otherwise run the grievance process concurrently, case law has established that it will rarely be unreasonable for an employer to complete a disciplinary process before hearing a grievance appeal, provided there was no evidence of unfairness or prejudice to the employee concerned (Samuel Smith Old Brewery (Tadcaster) v Marshall and another [2009]). Even in cases where an employee had raised a grievance against their managers whilst subject to a disciplinary process, tribunals have held firm that there is no obligation on an employer to pause a disciplinary process until a grievance was dealt with (Jinadu v Docklands Buses [2014]).

Where an employer is dealing with a ‘serial complainer’ and those complaints have been found to be unsubstantiated then they may take the view that the risks of not dealing with the grievance before concluding the disciplinary is acceptable.

That said, employers should not rush to conclude a disciplinary because a related grievance is received. Due consideration should be given to the issues raised in the grievance before deciding what to do next and extra care should be taken in cases of alleged discrimination, harassment and/ or bullying.

Conclusion

Employers need to carefully consider the content and potential impact on a disciplinary process of an overlapping grievance. The key thing to look out for is whether the subject matter of the grievance poses a serious risk to the fairness of the process or the outcome a disciplinary. If so, it is sensible for an employer to pause the process to investigate the grievance.