The new ACAS Code of Practice on Grievance and Disciplinary Procedures provides that where the grievance and disciplinary cases are related, it may be appropriate to deal with both issues concurrently. However, the Code is neutral, just as the now-repealed statutory dispute resolution procedures were, in that it does not strictly provide that the grievance appeal must be heard before a disciplinary hearing.
The case of Samuel Smith Old Brewery (Tadcaster) v Marshall and anor came about under the former, repealed statutory procedures. Nevertheless, it confirms that it is not automatically unfair for an employer to dismiss an employee before hearing the employee’s appeal against a related grievance, so long as the employee was dismissed for one of the potentially fair reasons under s.98 Employment Rights Act 1996 and that he acted reasonably in treating this reason as sufficient. In this case, the claimants managed one of the respondent’s 200 public houses. The claimants were asked to reduce its staff’s working hours from 84 to 45 hours but as this would have meant the claimants working longer hours, they refused to do so and raised a formal grievance.
The grievance was heard and rejected and an appeal meeting was then arranged. The appeal was postponed for various reasons and in the meantime, the claimants continued to refuse to reduce the hours. Prior to the appeal being heard the respondent’s decided to take disciplinary action, for which a separate meeting was set up. The claimants failed to attend the disciplinary meeting and were subsequently dismissed for gross misconduct. The EAT reversed the Tribunal’s original decision that the dismissals were unfair. The focus should not have been on the fact that there was a delay in hearing the grievance appeal, as once it had been decided that the claimants’ behaviour amounted to gross misconduct, the grievance appeal became irrelevant.
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