Samuel Smith Old Brewery (Tadcaster) v Mr and Mrs Marshall , EAT

This is an unfair dismissal case relating to the order in which the employer held grievance and disciplinary hearings.

The two claimants in this case managed a pub that was owned by the respondent. The pub industry was facing numerous difficulties at the time in question, so to cut costs, the respondent reduced the hours of the staff (other than the managers) working at the pub from 84 hours to 45 hours per week in total.

It is worth noting that the tribunal found that later when new managers took over the running of the pub, the staff hours reduced and profitability increased. Therefore the tribunal found that the decision to reduce staff hours was correct.

Crew complements

The claimants were not happy about the decision and raised a grievance. The outcome was that staffing hours should be reduced to 52 hours, with immediate effect.

It was also pointed out to the claimants that their management agreement with the respondent stated that the staffing hours could be altered at the absolute discretion of the respondent.

The claimants appealed against the outcome of the grievance. Throughout this time, they had not reduced staffing hours, despite numerous requests to do so.

They were again told by the respondents to reduce the staffing hours pending the appeal meeting, and reminded that they were breaching the management agreement, which gave the respondent the right to take disciplinary action against them.

The claimants kept the staffing hours at 84 hours per week, causing additional expense to the respondent, so the respondent commenced disciplinary proceedings.

The claimants refused to attend the disciplinary hearing because of the outstanding grievance (the appeal meeting had not been held by then). In their absence, the respondent took the decision to dismiss the claimants.

The tribunal found the respondent’s decision to dismiss was reasonable, but was procedurally unfair, and therefore the dismissal was unfair.

The tribunal stated that the respondent should have waited until the grievance appeal was concluded before holding the disciplinary meeting. But the Employment Appeal Tribunal (EAT) disagreed, pointing out that there was no provision in the respondent’s disciplinary procedure stating that disciplinary procedures should be suspended until a grievance appeal about the same matter had been dealt with. There is nothing in the Acas code to suggest this either.

In addition, the claimants could have raised the issues they would have raised in the grievance appeal hearing at the disciplinary hearing.

Key points

  • In most circumstances there is no need to complete the entire grievance process before commencing disciplinary action based on the same facts.

  • In this case, the EAT looked favourably on the fact that the respondent had heard the grievance, therefore it was only the grievance appeal that was outstanding.

  • The Acas code does not provide specific guidance on the type of situation that arose in this case, but states that in cases where the grievance and disciplinary cases are related, the two issues can be dealt with concurrently.

  • It was also significant that the claimants had refused to obey an order and been in breach of their management agreement for almost four months, which caused additional costs to the respondent at a difficult time financially.

What you should do

  • In cases where employees raise grievances that relate to the same subject matter as disciplinary proceedings, you should consider carefully the order in which to hold the hearings or whether there is a need for a separate grievance hearing at all. Consider the Acas guide and, if appropriate, seek legal advice.

The EAT therefore concluded that it is only in the rarest cases that it would be unfair for an employer to hold a disciplinary hearing before holding a grievance appeal.

“The claimants could have raised the issues they would have raised in the grievance appeal hearing at the disciplinary hearing”

by Richard Ryan, associate, Helen Ward, associate, and Tori O’Neill, trainee solicitor, Addleshaw Goddard

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