Employment Flash - 9th April 2010

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There is no obligation to hear a grievance appeal before a disciplinary hearing takes place...

Samuel Smith Old Brewery (Tadcaster) v Marshall [2010] UKEAT 0488_09_3103

S wanted to M to reduce the number of staff hours. M informed S that a consequence of doing so would be that M would have to increase his hours which he did not wish to do. M raised a grievance and gave notice of withdrawal from the working time opt out. S modified the reduction of hours but still required in compliance with their contract that M implement the reduction in hours. Grievance heard and rejected. M appealed but declined in the interim to implement the change in hours. S informed M that if grievance upheld then the hours would be recalculated. S proceeded with disciplinary procedure against M. M advised by Union's solicitors that disciplinary should not be heard until after the grievance [it is unclear whether the advisers were made aware the grievance had been heard, the appeal was awaited]. S warned M of the possible consequences of not attending; M did not attend, the disciplinary went ahead in his absence and he was dismissed for gross misconduct.

Although the ET determined that dismissal for failure to comply with a reasonable instruction after 3 months was within the range of reasonable responses the ET determined the dismissal to be unfair because of the failure to deal with the grievance appeal before the disciplinary but made a 10% deduction for contributory fault. The EAT overturned the first decision, and had it not done so would have remitted the second decision.

There was no contractual provision to preserve the status quo whilst the grievance procedure was followed. The ACAS [2004] code did not require the grievance appeal to be heard first [2009 Code: para 44: where a grievance is raised during a disciplinary procedure, the disciplinary might be suspended to deal with the grievance. Where the grievance and disciplinary are related it may be appropriate to deal with them concurrently]. Implementation of the instruction would not have resulted in any discernible detriment to M [apart it seems from having to work longer hours if M's own estimate of what was required was correct]. The reasonableness of the instruction to reduce staff hours could be raised at the disciplinary. The EAT concluded that there was authority for the proposition that it is necessary to complete the entire grievance procedure including appeal before a disciplinary can be heard and that it would only be in the rarest cases that it would be outside the range of reasonable responses for an employer to proceed with the disciplinary before hearing a grievance appeal, "at least in the absence of some clear evidence of unfairness or uncompensatable prejudice" [or a contractual provision to that effect].

Although the guidance to contributory fault in Maris v Rotherham BC [1974] IRLR 147 (approved by Elias P in Al Jumard v Clwyd Leisure Ltd [2007] UKEAT 0334 07) refers to the subsection [then s.116(3) of the Industrial Relations Act 1971; s.123(6) ERA] as bringing into consideration "all the circumstances surrounding the dismissal", Parker Foundry Ltd v Slack [1992] IRLR 11 [dealing with s.123(6)' predecessor, s.74(6) EP(C)A 1978] noted the absence of the words "in all the circumstances" in ss.(6) in contradistinction to ss.(1) and that the words "just and equitable" provide the ET with a discretion as to what reduction to make not as to whether to take into account matters other than were causative or contributory to the dismissal. It is cause or contribution to the dismissal not the fairness of the dismissal to which s.123(6) relates. 10% was a far too small reduction in view of the ET's findings as to the reasonableness of the reason for dismissal and was outside the band of reasonable findings by an ET.