Weekly Dilemma: dealing with a grievance during disciplinary proceedings

An employee at my restaurant business has raised a grievance after I started a disciplinary process to deal with a charge of gross misconduct. Do I have to hear out the grievance before I can fairly dismiss her?

The first thing to consider is what your own procedures say about discipline and grievances hearings being combined. Your question suggests that you’ve already made up your mind to dismiss her. The purpose of the disciplinary hearing (which should only be held after an investigation) is to give the employee an opportunity to state her case, and for you to consider properly any representations made by her – or her companion – before finding her guilty or deciding on any sanction.

The Acas Code of Practice on Disciplinary and Grievance Procedures says only that the disciplinary process “may be suspended in order to deal with the grievance”. If her grievance is connected with the subject matter of the disciplinary hearing, there is merit in hearing and deciding them together.

For example, if the employee says: “I did what I was told by my supervisor, who has been trying to get me into trouble,” the grievance is so bound up with the discipline it would not make sense to consider them separately – the grievance is part of the defence to the charge. Even if there is no connection, you aren’t obliged to put the disciplinary process on hold while you deal with the grievance (including any appeal). In coming to a decision on whether to delay the disciplinary proceedings, you should take into account how long that delay is likely to be.

If the grievance has come completely out of the blue, the employee may have submitted it as a way of delaying the hearing. If so, that does not automatically mean the grievance has no merit, but it may well be appropriate to consider why the complaint is only being made now. If you decide to combine the grievance and disciplinary hearings, given that both sides should be given sufficient time to prepare, it may be appropriate to delay the hearing to allow for the additional preparation resulting from the grievance. However, if the employee fails to provide you with the relevant information about the grievance in advance of the hearing, that would not normally be a sufficient reason not to proceed with the disciplinary part.

Colin Bourne, barrister, Kings Chambers

Get more information on the issues in this week’s dilemma from XpertHR’s FAQ section:

What are the possible consequences of failing to follow the Acas code of practice on disciplinary and grievance procedures? Who should carry out an investigatory meeting with an employee suspected of misconduct? What can an employer do where it suspects that an employee has committed an act of gross misconduct, but has no concrete proof?