Overlapping disciplinary and grievance procedures


The Acas Code (paragraph 44) says that where an employee raises a grievance during the disciplinary process, an employer may temporarily suspend the disciplinary process to deal with the grievance. Alternatively, where issues are related, it may be appropriate to deal with both issues concurrently.


There is no general legal obligation to put a disciplinary investigation on hold until grievances have been dealt with. 


As a general rule, if an employee is unhappy about issues relating to the disciplinary action itself, for example, the way the investigation is carried out, or aspects of the disciplinary procedure, the correct way forward is usually to appeal against the disciplinary sanction (see Chapter 10: Appeals), so that the issues are addressed within the disciplinary process, as opposed to lodging a separate grievance.


A separate grievance can, however, be appropriate in some circumstances, for example:


• where the member wants to raise something completely separate with nothing to do with the disciplinary proceedings;


• where the member believes the disciplinary process is part of a bigger picture. For example, a separate grievance is appropriate to allege that the disciplinary is part of a wider pattern of bullying; and 


• where the member believes the way a particular policy (such as performance management or attendance) is being applied to them is discriminatory. 


There is then a separate question, which is whether the disciplinary and the grievance should be dealt with as part of the same process, heard by the same manager, or whether the disciplinary should be suspended while the grievance is dealt with. 


Dealing with issues within the same process might be sensible where a member is being disciplined over a specific issue, for example, intermittent absence, but wants to argue that the absence procedure discriminates against them because of disability. The two issues are closely connected, and the single question of how the absence policy applies to the member can be resolved fairly in the same hearing by the same decision-maker.


However, this approach is unlikely to be fair where the allegation is that the investigator or decision-maker is biased, or that the disciplinary is part of a wider pattern of harassment or victimisation. Here, the fairest way would be to suspend the disciplinary process, and for the allegations in the grievance to be dealt with first, by a different manager, so that justice is both done and seen to be done. 


Sometimes disciplinary procedures include rules stating what is to happen when an employee lodges a grievance after a disciplinary process has started, for example, a rule that the disciplinary process will be suspended until the grievance is resolved.

Unless the grievance procedure states clearly that disciplinary action will be suspended while the grievance is resolved, there is no implied rule that an employer cannot dismiss an employee who has an unresolved grievance outstanding (Samuel Smith Old Brewery (Tadcaster) Limited v Marshall UKEAT/0488/09) (see Chapter 11: Grievance procedures). It all depends on the circumstances, applying normal tests for a fair dismissal.