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Changes to grievances and the disciplinary process

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A recent case has decided that employers do not always need to complete a grievance procedure before they dismiss an employee.

There is often confusion between employers and employees as to the correct procedure to follow where the employer initiates a disciplinary process and the employee subsequently raises a grievance relating to the same issues. Employees tend to want to have their grievances dealt with in full before the disciplinary process starts and request that the disciplinary process is stayed whilst their grievance is heard.

This can lead to increased costs for employers who feel obliged to keep employers on the pay roll whilst their grievances are dealt with even where the employee has committed an act of gross misconduct which would justify summary dismissal. It may also result in duplication if the issues are first to be considered for the purposes of the grievance and then again as part of the disciplinary procedure.

The Employment Appeal Tribunal (EAT) has now given some much needed guidance in this area. In the case of Samuel Smith Old Brewery (Tadcaster) v Marshall and another UKEAT/0488/09 it was decided that the employer, who had dismissed an employee before the grievance appeal had been completed, had not dismissed unfairly.

The EAT commented that it will only be in very rare cases that an employer’s decision not to complete the grievance procedure before dismissing an employee will, in itself, amount to unfair dismissal. They observed that there is nothing in the ACAS code which obliges employers to conclude the grievance process prior to dismissal.

The EAT took the view, in this case, that where the employee attended a disciplinary hearing they would have had the opportunity raise and discuss grievances at that stage and so a separate grievance procedure would not be necessary.

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