Managing Misconduct

Ashley Norman looks at two recent cases which provide helpful clarification on two potentially knotty problems which may arise during disciplinary proceedings: (1) what happens if an employee raises a grievance during a disciplinary process; and (2) are employers entitled to rely warnings which have been given in bad faith?

28/05/2015

Ashley Norman looks at two recent cases which provide helpful clarification on two potentially knotty problems which may arise during disciplinary proceedings: (1) what happens if an employee raises a grievance during a disciplinary process; and (2) are employers entitled to rely warnings which have been given in bad faith?

Grievance vs disciplinary process

It is often the case that employees will raise grievances during disciplinary processes – for example, employees may complain about the procedure itself, the circumstances leading up to the initiation of the procedure or may allege that the employees with conduct of the process are biased or have ulterior motives.

In Jinadu v Docklands Buses Limited, Ms Jinadu worked as a bus driver.  Her driving was considered to be below an acceptable standard, so she was asked to attend an assessment and training. She repeatedly failed to do so and was, therefore, dismissed for gross misconduct. During the disciplinary process leading up to Ms Jinadu's dismissal, she raised grievances against the managers concerned, centring mainly on allegations of bullying and being made a 'scapegoat'.  Nonetheless, Docklands Buses pressed on with the disciplinary process, ultimately dismissing Ms Jinadu for gross misconduct.  Ms Jinadu appealed, but her appeal was rejected. On appeal to the Employment Appeal Tribunal (EAT), Ms Jinadu argued (amongst other things) that her dismissal was unfair because Docklands Buses should have suspended the disciplinary procedure while her grievance was dealt with.

The EAT gave that argument fairly short shrift, saying that Docklands Buses was not obliged to put the disciplinary investigation on hold while it dealt with Ms Jinadu's grievance. The EAT did not expand the point further, but it is useful to have confirmation that it may be fair to continue with a disciplinary process after a grievance has been raised during that process.

That said, this case does not establish a blanket rule that there it will always be correct to continue with a disciplinary procedure when a grievance has been raised.  It will depend on the circumstances of the individual case and employers will have to decide whether to

  • suspend the disciplinary procedure in order to fully investigate the grievance or,
  • deal with both of them concurrently.

The non-statutory Acas guide 'discipline and grievances at work' provides further details (at page 22) on the options available and the factors that should be taken into account when making that decision.

Warnings given in bad faith

In general, employers will take a 'staged' approach to misconduct issues, taking into account any previous live warnings before imposing a disciplinary sanction. Case law has established that a final written warning implies that further misconduct, of whatever nature, will be met with dismissal (unless the terms of the contract provide otherwise or the circumstances are exceptional).  Therefore, in the majority of cases it is perfectly acceptable to rely on a valid unexpired warning during the dismissal process.

However, in the recent case of Way v Spectrum Property Care Limited, the Court of Appeal looked at the approach that should be adopted where an employee claims that a previous final written warning was given in bad faith. 

In this case, Mr Way was dismissed by Spectrum Property Care Limited ('Spectrum') for sending inappropriate emails.  Spectrum would not have dismissed Mr Way for that misconduct alone, but did decide to dismiss Mr Way because he was subject to an earlier final written warning for breaching the company's policy on recruitment. When the earlier warning had been issued, Mr Way was informed that any further misconduct would result in dismissal. He was also informed of his right of appeal, but he did not do so. 

Mr Way argued that his dismissal was unfair, because the earlier warning had been given in bad faith and, therefore, Spectrum was not entitled to rely on it.  Mr Way said that his line manager had sanctioned the breach of recruitment policy which had resulted in the written warning, and had issued the warning in order to cover up his own involvement in the flawed recruitment process.  Mr Way also alleged that he was told that he would lose his job if he appealed against the final written warning and it would be best for him "…forget about the whole thing and move on."

Overturning a decision of the Employment Appeal Tribunal, the Court of Appeal (CA) said that taking into account a warning which was issued in bad faith would be unreasonable and unfair. The CA disapproved of the Employment Appeal Tribunal's finding that the earlier warning had been given in bad faith but could, nonetheless, be relied upon because (amongst other reasons), Mr Way had failed to appeal against the final warning. The Court of Appeal remitted the case back to the employment tribunal to decide if, in fact, Mr Way's earlier warning was issued in bad faith.  

The Court of Appeal has, therefore, confirmed that tribunals – and, by extension - employers

  • are entitled to rely on earlier final written warnings; unless
  • the warning was issued in 'bad faith' or without good grounds.  In those circumstances, the earlier warning will not be valid and cannot be relied on.

In terms of what is meant by 'bad faith', previous case law has said that examples of this could include a warning which was given with an 'oblique motive' or which was 'manifestly inappropriate' (Wincanton Group PLC v Stone, 2013).

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