Overlapping Disciplinary and Grievance Issues

In Samuel Smith Old Brewery (Tadcaster) v Marshall [EAT/0488/09], Mr and Mrs Marshall were pub managers. Their employer instructed them to reduce their staff working hours by about 50% for the pub's survival following a sharp decline in pub trade.

The managers refused to do so. A grievance hearing was held when they complained that the reduction would lead to an unacceptable increase to their working hours. The employer disagreed with their complaint.

After the grievance hearing, the employer instructed the managers to immediately reduce their staff working hours – with a warning that disciplinary action may be taken against them - if they failed to do so. The managers replied that they would not comply with the instruction until a grievance appeal meeting was held.

The employer responded by inviting the managers to attend a disciplinary hearing for their refusal to reduce their staff working hours. The managers replied that they would not attend such a hearing until a grievance appeal meeting was held.

The disciplinary hearing was held in the managers’ absence and they were dismissed for gross misconduct.

EAT’s Decision

The EAT held that the managers’ dismissals were fair.

An employer is not legally required to hold a grievance appeal hearing or exhaust the grievance procedure - before it could hold a disciplinary hearing - if the reason for the disciplinary action is related to the employee’s grievance.

Where an employer holds a disciplinary hearing before the grievance procedure is exhausted that does not automatically mean that the employer is acting unreasonably.

The managers had refused to reduce their staff working hours for over three months and they could have explained the reasons for their refusal at the disciplinary hearing.

The EAT also stated that the “old” ACAS Code of Practice did not require an employer to exhaust the grievance procedure before holding a disciplinary hearing.

Comment

The EAT’s statement about the “old” ACAS Code of Practice also applies to the “new” ACAS Code that came into force on 6 April 2009.

Paragraph 44 [Overlapping grievance and disciplinary cases] of the “new” ACAS Code only refers to a case where an employee raises a grievance during the disciplinary process.