In the recent case of Jinadu v Docklands Buses Limited & Ors the Employment Appeal Tribunal (EAT) considered whether an employer was under an obligation to postpone a disciplinary hearing to consider an employee’s grievance.
Ms Jinadu was a bus driver whose driving was considered to be unsatisfactory following a complaint from a fellow road user. Following an investigation, she was instructed by the Operating Manager, Mr Dalton, to attend an in-house training centre for a driving assessment. Ms Jinadu refused to attend, saying that Mr Dalton was using his managerial position to bully her and that she was being made a “scapegoat”.
As a result of her refusal to attend, Mr Dalton referred the matter to the General Garage Manager who invited her to a disciplinary hearing, warning that her dismissal may follow. Ms Jinadu attended the hearing and was dismissed for gross misconduct.
Ms Jinadu brought proceedings for unfair dismissal (amongst other matters), and the Tribunal found that her dismissal was fair. She appealed against this decision on a number of grounds, most notably that the disciplinary procedure ought to have been suspended for a short period while her grievances were dealt with.
The EAT dismissed this ground of appeal fairly succinctly, by stating only that the employer was not obliged to put the disciplinary investigation on hold.
The judgment does not elaborate upon the reasons for this decision, so cannot be relied upon as an authoritative statement of the law. It does, however, serve as a useful reminder that a fact-specific approach ought to be taken to the question of whether the raising of a grievance should require the pausing of an extant disciplinary process.
There will undoubtedly be occasions when this would likely be appropriate, such as where an employee complains of bias or discrimination by the disciplinary officer, but this case confirms that the mere existence of a complaint by the employee is not by itself sufficient to require the entire disciplinary process to be put on hold pending resolution of the complaint.
The EAT also reached an interesting conclusion on the matter of costs. Whilst the appeal was successful on two grounds (other than the above), neither of those grounds were advanced by Ms Jinadu in her Notice of Appeal or Skeleton Argument. Accordingly, the EAT concluded that the employer ought not to be ordered to pay the cost of the appeal, as the employee had not succeeded on the grounds that she had pursued. The EAT carefully considered Ms Jinadu’s limited finances but concluded that it would simply not be just for the employer to incur any of the costs of the appeal.
This demonstrates a robust approach to the new fees regime, considering the fairness to both parties without dwelling solely on the financial means of the employee in circumstances where she was technically successful.