A question which I am often asked is, "how do we deal with an employee who has raised a counter grievance during disciplinary proceedings?" This is a common occurrence and an issue which many employers are faced with.
Having received notification that they are subject to disciplinary proceedings, many employees react to this news by raising a counter grievance. This grievance could relate to a number of things including the disciplinary process itself or to a completely separate matter. However, unlike grievances which are raised at other times, a counter-grievance is often raised to derail the disciplinary process and muddy the waters.
The issue faced by many employers is whether or not they should put the disciplinary process on hold pending the outcome of the grievance proceedings. Or can the disciplinary process proceed as normal? This was a question which was raised in a recent case of Jinadu v Docklands Buses where an employee who was subject to disciplinary proceedings stated that a member of management was out to get her.
The individual was dismissed for gross misconduct and claimed unfair dismissal at the employment tribunal. The employment tribunal dismissed her claim on the basis that the employee had repeatedly refused to attend a training centre for assessment which would have impacted on the decision to dismiss. The employee then appealed her claim to the EAT where she argued that the employer was obliged to automatically suspend the disciplinary proceedings once she raised a grievance.
Although the employee's appeal was ultimately successful on a different point of law, the EAT rejected this particular argument that the disciplinary proceedings should have been suspended.
What employers can take away from this case is that the introduction of a counter grievance into the process does not require an employer to automatically stop the disciplinary proceedings. However, it is important to examine the nature of the grievance. If the grievance is independent to the disciplinary matter, then it could be argued that the two could run alongside each other. However, if there is a complaint regarding the actual disciplinary proceedings themselves, for example the impartiality of an investigator, then it would be appropriate for an employer to investigate further before continuing with the disciplinary proceedings. Alternatively, if the grievance raised is that the disciplinary proceedings are unfounded, the employee has the opportunity to raise this point at a disciplinary hearing and there is no need to stop the process.
If you would like any further assistance in relation a counter grievance, please do not hesitate to get in touch with a member of the employment team.