It is not uncommon for employees, who are subjected to disciplinary proceedings, to raise a grievance. The question that often then arises for the employer is whether or not that disciplinary process should be suspended while the grievance is dealt with. The case of Jinadu v Docklands Buses Limited and others (2015) confirms that, in some circumstances, employers are able to continue the disciplinary process, without having to suspend the ongoing procedures in order to resolve the employee’s grievance.

Ms Jinadu was employed as a bus driver by Docklands Buses Limited (“Docklands”). Following a complaint from a car driver, an assessment was carried out in respect of her driving which suggested various failings including: pulling out with cars still passing, one-handed driving, poor lane discipline and running a red light. It was concluded that Ms Jinadu’s driving was below an acceptable standard and she was instructed by Docklands to arrange a driving assessment at their in-house training centre. She repeatedly refused to comply with the instruction and, accordingly, was dismissed for gross misconduct for failing to comply with a clear instruction without good reason.

Ms Jinadu appealed against her dismissal and the appeal hearing was adjourned for her to attend the assessment, which she later failed. The appeal was reconvened. During the appeal hearing, Ms Jinadu set out various complaints against her managers, Mr Dalton and Mr Butterfield, including allegations that they were “against” her and complaints of discrimination. The outcome of the appeal was to reject these allegations, and to reject Ms Jinadu’s appeal against her dismissal. The reason given by Docklands for the rejection of the appeal was that she failed to display a satisfactory driving standard, and that her dismissal was in the interest of public safety.

Unfair dismissal proceedings were brought by Ms Jinadu in the Employment Tribunal (ET). The ET dismissed the claim on the ground that Ms Jinadu repeatedly refused to attend the assessment, which was a reasonable instruction in light of the need for passenger/public safety. In addition, Ms Jinadu had been given numerous opportunities to change her mind and appeared to be aware of the consequences. Accordingly, the ET concluded that the dismissal was within the band of reasonable responses.

Ms Jinadu appealed to the Employment Appeal Tribunal (EAT). She argued that, in accordance with Docklands’ grievance procedure, the disciplinary procedure should have been suspended whilst her grievances were dealt with, and that Docklands should have brought in another manager to deal with the disciplinary process, having regard to her complaints about Mr Dalton and Mr Butterfield. The EAT rejected these submissions.

This decision confirms that there is no general rule that a dismissal will be unfair if an employer continues with disciplinary proceedings, without suspending the same in order to resolve a grievance raised by the employee, thus avoiding incurring any further delay. Indeed, the ACAS Code indicates that where the grievance and disciplinary cases are related, it “may” be appropriate to deal with matters concurrently. Clearly, however, each case will turn on its facts and employers should give careful consideration as to the nature of the grievance raised and how it relates to the disciplinary proceedings. It is in this respect that the ACAS Guide suggests that a company should “consider” suspending the process where an employee alleges a conflict of interest, bias, selective evidence or possible discrimination.

If any issues arise in respect of the above or if you have any concerns, please contact Linky Trott or any member of the Edwin Coe Employment Team.

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