Potentially no need to duck for cover when the employee is firing blanks

Have you ever encountered an employee try to delay their disciplinary process, and probable dismissal, by raising grievances against fellow employees and managers? Have you then spent hours investigating each of these accusations before being able to complete the original disciplinary process? A number of employers will take comfort from the case of Jinadu v Dockland Buses decided this week. The case rejected the notion proposed by the employee that her dismissal was unfair because the employer had completed her disciplinary proceedings without first investigating the grievances she had raised.

The case

The case involved a bus driver being summoned to a disciplinary hearing after reports of poor driving. During the proceedings the employee made a number of allegations against some of the managers involved. Despite these allegations the employer continued with the disciplinary proceedings and ultimately dismissed the employee. The employee claimed in the Employment Appeal Tribunal (EAT) that her grievances should have been resolved before she was dismissed. The EAT ultimately decided that this was not the case and that the dismissal was fair.

Caution

The Employment Judge did not go into great depth as to why he rejected this argument made by the employee. This means that it is still uncertain as to when an employer can proceed with a dismissal without dealing with any grievances raised and when this would be inappropriate. Like many legal matters it will still depend on the facts of the case and the specific circumstances surrounding the dismissal. However this case does make it clear that if a grievance is ignored then the dismissal is not automatically unfair. This in itself should provide some encouragement to employers.

The Employment Judge also rejected the employee’s argument that the process was unfair because some of the people she had raised grievances against were involved in the disciplinary process. This is interesting, although it should be noted that no grievances were raised against the person chairing the disciplinary hearing and the ultimate decision maker.

Advice

Our advice would be to take each case as it comes. If you believe the accusations could have an effect on whether or not the employee retains their job, then this should be a part of your investigation. If however the grievances are unrelated to the employee’s situation and simply a way of trying to delay the inevitable, then you should proceed with the disciplinary process as planned. We would always recommend conducting exit interviews with staff leaving your employment. This will give an employee the chance to raise comments about fellow staff. It is during these interviews, when there are no repercussions to the employee, that employers often learn most about their staff.

In terms of the disciplinary process itself, clearly a disgruntled employee will often make accusations about managers who have criticised them. This should not absolve their input in the process. However we would strongly recommend, if at all possible, having an impartial person to chair any disciplinary hearing. This should be someone who has had no involvement with the investigation nor the employee previously.

Andrew Wallace 
Solicitor – Employment Law
@EmpLawyerAndy 
www.blackadders.co.uk

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