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 in order to deal with the grievance. Alternatively, where issues are related, it may be appropriate to deal with both issues concurrently.

There are a few points to note about this issue, which can be quite complicated:

• 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 appropriate way forward is usually to lodge an appeal against the disciplinary sanction (see Chapter 10: Appeals), so that these issues are addressed within the disciplinary process, as opposed to lodging a separate grievance.

• A separate grievance is, however, likely to be appropriate in some circumstances, for example:

◊ where a member wants to raise a completely separate issue, that has nothing to do with the disciplinary proceedings;

◊ where a member wants to argue that the disciplinary process is part of a bigger picture. For example, a separate grievance is likely to be appropriate if the member wants to allege that the disciplinary is part of a pattern of bullying, harassment or discrimination; or

◊ where a member wants to allege that the way in which a particular policy (such as performance management or attendance) is being applied to the member is discriminatory.

• There is then a further question, namely whether the disciplinary and the grievance should be dealt with “concurrently” i.e. as part of the same process, heard by the same manager, or whether, instead, the disciplinary should be suspended while the grievance is dealt with:

◊ Dealing with issues concurrently might be appropriate where, for example, a member is disciplined in relation to a specific issue, such as intermittent absence, but wants to allege that the absence procedure discriminates against the member because of disability. Here, the two matters are closely connected and the single issue — how the absence policy applies to this employee — can fairly be resolved within one hearing, by the same decision-maker.

◊ But sometimes, the allegation is that the investigator or the decision-maker is biased against the employee, or that the disciplinary is part of a wider pattern of harassment. In these circumstances, the fairest way forward is likely to be for the disciplinary process to be suspended, and for the allegations in the grievance to be addressed by a different manager through a separate process, so that justice is both done and seen to be done.

Sometimes disciplinary procedures contain a rule stating clearly what is to happen where 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 a grievance procedure states clearly that disciplinary action will be temporarily suspended while the grievance is resolved, there is no rule that the employer cannot dismiss an employee while a grievance is outstanding (Samuel Smith Old Brewery (Tadcaster) Limited v Marshall UKEAT/0488/09) (see Chapter 11: Grievance procedures). It all depends on the circumstances of each case, applying the normal tests for a fair dismissal.