04 May 2010 #Employment
The Employment Appeal Tribunal (EAT) has held in Samuel Smith Old Brewery (Tadcaster) v Marshall and another EAT/0488/09 that it will only be in rare circumstances that it is unfair to dismiss an employee after a disciplinary hearing prior to holding a related grievance appeal hearing.
Mr and Mrs Marshall raised a grievance when their employer attempted to change their working hours. Whilst awaiting the outcome of their grievance hearing they refused to implement the new working hours. When their grievance was dismissed they submitted an appeal and insisted that they would not change the hours until the grievance process was exhausted.
The employer began disciplinary proceedings for failure to follow a reasonable management instruction. The disciplinary hearing was scheduled to take place one week before their grievance appeal hearing, but the couple refused to attend. The hearing went ahead in their absence and they were dismissed for gross misconduct.
The ET upheld Mr and Mrs Marshall`s unfair dismissal claim on the ground that the employer`s decision to hold the disciplinary hearing in the couple`s absence before hearing their grievance appeal made the dismissal unfair, as they could reasonably have been expected to delay the hearing for one week.
The EAT disagreed. It stated that nothing in the claimants` contracts of employment stated that disciplinary proceedings should be stayed pending the outcome of a related grievance procedure and that there is nothing in the Acas code of practice on disciplinary and grievance procedures that requires a grievance to be heard first.
The EAT also stated that it would only rarely be outside the range of reasonable responses for an employer to proceed with a disciplinary hearing before holding a related grievance appeal hearing, at least in the absence of some clear evidence of unfairness.