Overlapping Disciplinary and Grievance Procedures

It is a common occurrence that during a disciplinary process an employee will frequently raise a grievance (and often some terrible grievances as workers use their ‘one last opportunity’ to put the world to rights from their perspective). This raises the question for an employer as to whether the disciplinary process should be interrupted until the grievance has been heard and concluded.

As is frequently the case the more recent (post 2009) ACAS Code of Practice is not of much help, having been parsed down to the simplest of advisory statements (were the ACAS Guide to have statutory status the situation would be much improved). However, this is what it says on the subject of overlapping disciplinary and grievances:

46. Where an employee raises a grievance during a disciplinary process the disciplinary process may be temporarily suspended in order to deal with the grievance. Where the grievance and disciplinary cases are related it may be appropriate to deal with both issues concurrently.

One struggles to think of how this advice could be any more woolly; instead of “may” why not “should” or “should normally”?

This is a difficult issue for employers – after all, some employees may well use a complaint as a stalling mechanism for no other reason than to defer the inevitable (dismissal) which, understandably, employers will be concerned about. This difficulty makes the vacuous advice from ACAS even more galling.

Surprisingly, I have been able to identify very little caselaw on this subject. There are however two cases upon which I will comment, although both seem broadly consistent: Samuel Smith Old Brewery (Tadcaster) v Marshall concerns dismissing an employee where there is an outstanding grievance appeal while Jinadu v Docklands Buses Limited concerns the more common situation of whether a disciplinary hearing should be suspended pending the outcome of a ongoing grievance.

I turn to the latter case first. The claimant in Jinadu was told by her manager to attend a training course that was related to the role as a bus driver, she refused. She was subsequently called to a disciplinary hearing on the basis that she refused a management instruction. At that hearing the meeting was adjourned so that the claimant could in fact attend the training course which, if she failed, would mean dismissal was a possibility on inefficiency (not conduct) grounds. The claimant did fail that course and was subsequently dismissed although whether that was because of conduct (refusal of management instruction) or inefficiency (failure to pass test) was unclear and the EAT remitted the case back to the ET to determine that issue. However, at some point the claimant made a grievance against two employees, Mr Butterfield and Mr Dalton and the claimant was dismissed without that grievance having been considered. One of the grounds of appeal to the EAT was that the employer should not have dismissed the claimant without that grievance being considered first.

Unfortunately, given the lack of guidance in the ACAS Code of Practice the EAT in Jinadu did not utilise the opportunity to provide some clear guidance to employers on when it is reasonable to dismiss an employee without first resolving extant grievances. The whole of J Supperstone’s consideration can be found in one paragraph (18):

In my judgment the Tribunal was entitled to make the findings and reach the conclusions it did in relation to the Respondent’s breaches of procedure.  In particular, I reject Mr Ogilvy’s submission that the Respondents were obliged to put the disciplinary investigation on hold until they had dealt with the Appellant’s grievances.  I also reject the submission that Mr Butterfield and Mr Dalton, in particular, should not have been involved in the disciplinary process, as the Appellant had raised grievances against them.  Mr Russell conducted the disciplinary hearing, and the Appellant had no extant grievance in relation to him.

And that’s it! No reasons, just one sentence.

You may have blinked and missed it so I will restate it: “I reject Mr Ogilvy’s submission that the Respondents were obliged to put the disciplinary investigation on hold until they had dealt with the Appellant’s grievances”

However deficient the reasons given by the EAT are, on the facts of the case it seems to me the decision that the dismissal was  a reasonable one is correct since that it appears the grievance was related to conduct of other staff that was not directly material to the case and  were not hearing the case (so no allegation that independence or bias was at issue). But, in his closing remark that “Mr Russell conducted the disciplinary hearing, and the Appellant had no extant grievance in relation to him” J Supperstone provides an indication that his finding is not a general one, but one very much based on the facts of the case.

But what if  the claimant had had an extant grievance at the time of the dismissal hearing that concerned the decision maker? Would the dismissal then have been unfair?

The EAT judgment certainly suggests that that would have been a finding open to the ET – this seems right to me and one of those occasions where it is right that disciplinary proceedings should be suspended. After all, it is not hard to envisage a scenario where a manager has a personal vendetta against an employee and, as part of a campaign of bullying moves to sack the employee. Were that employee to raise a grievance that she was being bullied by the manager holding the meeting it would surely be in the employer’s as well as the employee’s interests to suspend proceedings to investigate the matter. After all, if they don’t not only is there a risk of an injustice being done but there’s a risk of a costs by the employer in ET proceedings that could otherwise be avoided!

The other case, Samuel Smith Old Brewery (Tadcaster) v Marshall, reads like a farce in which it appears the claimants were dismissed because they relied on arguably negligent advice by their union (Unite). The nub of the case however was again a failure to follow a management instruction but here the case overlap with the dismissal reason was clearer than in Jinadu. The claimants (who were managers) were told to reduce the hours of work given to their employees which the claimants objected to by lodging a grievance. That grievance was heard and rejected and the claimants were told to implement the changes. The claimants appealed the grievance rejection and refused to comply with the instruction to reduce hours because the grievance appeal was unresolved. The employer made clear that even though the grievance appeal was  outstanding the instruction to reduce hours of staff must be complied with (if the grievance was successful then the hours not paid would be paid). In the event the claimants still refused and a disciplinary hearing was convened which they did not attend (on advice from their union) at which they were dismissed. On the question of whether an employer must hear a grievance appeal before a disciplinary the EAT found, at paragraph 66:

There is no authority for the proposition that it is necessary to complete the entire grievance procedure (including an appeal) before a disciplinary hearing can take place. We would suggest it can only be in the rarest of cases that it would be outside the range of reasonable responses for an employer to proceed with a disciplinary process before hearing a grievance appeal, at least in the absence of some clear evidence of unfairness or uncompensatable prejudice. It is important to bear in mind that this is not a case where there had been no grievance hearing at all, such a hearing had taken place, which rather makes the Respondent’s case stronger.

In some senses (despite in others the employer going above and beyond in ensuring a fair process) this is a harsh decision since clearly the matters were directly related but they were not contingent on each other. The suggestion that where there is a case of unfairness or uncompensated prejudice that could jeopardise a disciplinary hearing a deferral may be appropriate would seem to at least equally apply in the case of an initial grievance hearing.  It seems to me that it is precisely in those sort of cases (for example, discriminatory or bullying motives of a manager hearing a case) that would justify a suspension of a disciplinary hearing and, conversely, could justify a finding of unfair dismissal if such a suspension was not granted.

 

Cases Referenced:

Jinadu v Docklands Buses Ltd [2015] UKEAT 0434_14_1703

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

Diagnosing Dyslexia

Dyslexia is is, especially if undiagnosed, a debilitating condition in the affect it has on the self-confidence of those with the condition. Thankfully, in children there has been a marked improvement in the identification of students with dyslexia and related conditions meaning appropriate support can be given (although, no doubt, there is still much more work to be done). However, it was not always so and that means it is an issue trade unionists need to be aware of.

What is Dyslexia?

Dyslexia is a fairly common condition learning disability the affects the ability of individuals for reading and writing and the ability of people to learn new information, when the mode of delivery is by the written or spoken word. It is estimated that around 10% of the population has some dyslexic impairment.

Dyslexia is a long term condition that affects a person’s ability to perform normal day to day activities and, therefore, may be a disability under the Equality Act 2010. Helpfully, some work related duties such as stressful assessment practices (dyslexia often manifests more in times of stress) have been found to be normal day to day activities and so easier to establish disability in work related matters (see Paterson v Commissioner of Police of The Metropolis [2007] IRLR 763).

Broaching the subject

For those already in work I find that those with undiagnosed dyslexia often fall into two groups (there is a third group – probably the majority – who do not we will not encounter):

  • Those who have long suspected they may be dyslexic but have never, perhaps out of fear, confronted the issue but asks for advice as to whether they should pursue this, perhaps they find that although they do their role well their applications for promotion are never successful; or
  • Those for whom the employer has started capability proceedings, which means they are on the road to dismissal.

For the latter group especially it clearly needs a tactful conversation but they should be asked if they have ever been diagnosed or tested for dyslexia. Where the alleged poor performance relates to poorly written reports, for example, raising this question could be the difference between the member being dismissed and keeping their job. This is because the employer would need to ensure, prior to even contemplating dismissal, that all reasonable adjustments had been implemented or considered.

Dyslexia Diagnosis

Where a worker or a rep suspects an employee maybe dyslexic it is advisable to explore that matter. The British Dyslexia Association have produced a helpful checklist to help ascertain whether an adult may be dyslexic, this can be found here. This is probably a good first port of call as by taking it the probably has a good indication on whether they may have dyslexic tendencies. Needless to say this is not a formal diagnosis and should not be relied upon as such.

However, where the checklist indicates there may be an issue then I think the union rep would be well advised to formally write to the employer setting out that there is reason to believe that the member is dyslexic and, therefore, also a disabled person under the Equality Act 2010. For one thing, having received the correspondence the employer cannot claim ignorance of the possibility which will itself already provide the member some protection. This letter should also suggest that, in order to identify whether the employee is a disabled person and to advise on adjustments the employer would be well advised to pay for an independent dyslexia assessment from an expert (e.g., an educational psychologist).

If an employer will not pay for an assessment (many larger employers will) then it will be advisable for the employee to make contact with the charity Dyslexia Action who offer a formal diagnostic assessment by a consultant psychologist. Details of this diagnostic assessment process and local contacts point to secure an assessment can be found here.

If that assessment comes back confirming a diagnosis it is important that the employee inform the employer of that diagnosis and that the union believes the member will be a disabled person since it is at the point the employer has knowledge of disability that the duty to make adjustments is formally engaged. This would also be a good time for the employee to seek an Access to Work assessment which will provide recommendations on adjustments. If an employee on formal capability measures is identified as needing adjustments that have not been made it will be difficult for an employer dismiss a dyslexic employer without first implementing these and given them a chance to succeed.

Readers may also find the TUC guide on dyslexia helpful.

 

Cases Referenced:

Paterson v Commissioner of Police of The Metropolis [2007] IRLR 763

Can a Taxi to work be a Reasonable Adjustment?

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This is a question that is only ever likely to be asked of employees of central government departments. In most circumstances a disabled employee who is unable to travel to work by their own means (for example, by driving or using public transport) may obtain assistance through the Access to Work scheme which provides fares to work assistance. It is only employees of central government departments who are, as a matter of policy, excluded from that assistance and therefore, any assistance would need to come from the employer.

Unfortunately, the legal question of whether an employee should be given assistance to travel to and from work is less helpful. In Kenny v Hampshire Constabulary, a case concerning the Disability Discrimination Act 1995, the extent of which activities related to employment are “arrangements made by or on behalf of the employer” that engage a duty to make reasonable adjustments (in 2004 the DDA was amended to make reference instead to a provision, criterion or practice applied by or on behalf of the employer”.

Kenny is a sad case in which the claimant, who had cerebral palsy exhibited notable tenacity in refusing to accept Access to Work recommendations that he was unable to work and sought employment himself. He was successful in his application but when the full nature of the adjustments required were known, such as needing assistance to go to the toilet, the employer withdrew the job offer. The question for the EAT was were the domestic needs of Mr Kenny an arrangement made by or on behalf of the employer. The EAT dispatched with this issue quickly in finding that the arrangement must be ‘job related’:

The first question that arises is whether the arrangements which were necessary to enable the applicant to work with the respondents fall within section 6. We have come to the conclusion that they do not. Broadly, we accept the submission on behalf of the respondents on the cross appeal. In the first place, we consider that Ms Moor’s submission amounts to a contention that every arrangement which could be made to facilitate the disabled person’s employment falls within the definition in section 6(2). Yet, as it seems to us, a line must be drawn somewhere otherwise the statute would have been drafted differently. Subsection (2), as the word “only” foreshadows, is not intended to cover everything an employer could do. For example, the provision of transport for getting to an fro from the employers’ premises is outwith the section. If a disabled person needs assistance from another to get to work, that is for him/her to provide and pay for, but not the employers’ responsibility. The effect of a failure to provide this service may deprive the disabled person of an opportunity to be employed in an undertaking, but without involving a breach of the Act. Therefore, the fact that the failure to make an arrangement will have this effect does not, of itself, bring the arrangement within the Act. In other words, not every failure to make an arrangement which deprives an employee of a chance to be employed is unlawful. It is to section 6(2) that one must turn for a definition of what is covered. It seems to us that in the context of the language used, namely “any term condition or other arrangement on which employment promotion a transfer or any other benefit is offered or afforded”, Parliament had in mind what might be called ‘job related’ matters. In other words, Parliament is directing employers to make adjustments to the way the job is structured and organised so as to accommodate those who cannot fit into existing arrangements.

It seems clear then that under the DDA at least a refusal to provide transport to and from work will not be a ‘job related’ arrangement and therefore not be a reasonable adjustment. Only where the employer does more generally provide transport to work, which does sometimes happen, would this be a arrangement of the employer that would possibly engage the duty to make adjustments for a more individual approach to work.

In conversation with other reps one question that reps have asked is how on this basis the allocation of a reserved car parking space can be found to be a reasonable adjustment since this is also clearly not about the job itself but traveling to and from work. The case of The Environment Agency v Donnelly is a case in point. In Donnelly the employer offered car parking to all staff in two different car parks. It is therefore an arrangement made by the employer such that where that arrangement placed a disabled person at a substantial disadvantage there was a duty to make reasonable adjustments imposed. Were an employer not to offer any car parking spaces for use by employees then there would not be a arrangement of the employer that could place disabled employees at a substantial disadvantage.

But what of the situation under the Equality Act 2010?

Section 20 of the Equality Act supersedes Section 6 of the DDA to set out the circumstances in which a duty to make adjustments arises. The main focus on when a duty to make adjustments arises in the Equality Act remains essentially the same as was the case under the DDA: the employer must impose “a requirement, where a provision, criterion or practice of A’s puts a disabled person at a substantial disadvantage in relation to a relevant matter in comparison with persons who are not disabled”.

I can see no basis under the current legislative drafting why the principle in Kenny that an adjustment must be job-related and a PCP of the employer would not be applied in an Equality Act context. I have heard it said that the addition of section 20(5) of the Equality Act which relates to auxiliary aids may change the position. An Auxiliary Aid is defined in the EHRC Employment Practices Code (6.13) as being “something which provides support or assistance to a disabled person. It can include provision of a specialist piece of equipment such as an adapted keyboard or text to speech software. Auxiliary aids include auxiliary services; for example, provision of a sign language interpreter or a support worker for a disabled worker.”

Whilst I am not aware this issue has been adjudicated upon (if I’m wrong comments are very welcome) given the definition of “relevant matter” in schedule 8 of the Act I cannot see that a tribunal would be likely to take a different approach and the EHRC Code does not advance this (the language of the Code itself reflects the earlier Code alluded to in Kenny).

Does that mean there is no legal recourse to an employee? Were an employee to in principle qualify for Access to Work’s fares to work scheme but in practice not qualify because of their employment in a central government department then it does strike there is a prospect that they may have a claim that the employer’s failure to pay for their transport represents unfavourable treatment arising from disability. Because of the Government’s public commitment when removing DWP funding for Access to Work adjustments that there would be no loss in the level of support offered then it could be argued that the actual deterioration in support offered is not a proportionate means of achieving a legitimate aim.

 

Cases Cited:

Kenny v Hampshire Constabulary [1998] UKEAT 267_98_1410

The Environment Agency v Donnelly [2013] UKEAT 0194_13_1810

Procedural (In)justice

Mr Kiani was employed by a government department. In March 2008 he was suspended from duty and in June 2008 his security clearance, which was necessary for him to perform his job was withdrawn. In July 2010 Mr Kiani was dismissed, although no reasons were given for his dismissal.

Such lack of transparency has all the makings of a successful unfair dismissal claim which is precisely what Mr Kiani lodged, together with a discrimination claim. The Respondent contended that the reason for Mr Kiani’s dismissal was for reasons of national security and applied for closed proceedings whereby the ET would be heard in the absence of the claimant and the claimant’s rep, with a special advocate representing (who is no allowed to take any instructions from the claimant), and no disclosure of the case documents or the ‘gist’ of the documents being disclosed to the claimant. In short, the adversarial process was to be conducted with one party in the proceedings being blindfolded throughout. This is not exactly what I think is meant by the maxim “Justice is Blind”.

Unfortunately Mr Kiani is one of a number of individuals faced with the invidious position of being dismissed for something and not being able to be given the opportunity to put the employer right on why their position from their perspective is wrong and then being denied that same opportunity to put those arguments before a Tribunal themselves. I have referred before to the comments of Megarry J in John v Rees [1970] Ch 345 that

It may be that there are some who would decry the importance which the courts attach to the observance of the rules of natural justice. “When something is obvious,” they may say, “why force everybody to go through the tiresome waste of time involved in framing charges and giving an opportunity to be heard? The result is obvious from the start”Those who take this view do not, I think, do themselves justice.

As every body who has anything with the law well knows, the path of the law is strewn with examples of open and shut cases which, somehow, were not of unanswerable charges which, in the event, were completely answered; of inexplicable conduct which was fully explained; of fixed and unalterable determinations that, by discussion, suffered a change.

There can be no doubt that in cases like Mr Kiani’s the employment law system has been engineered to deny the claimant themselves from being having the opportunity to explain why in their view the concerns of an employer were without basis. The sad thing is that it is the employment tribunal system with its system of closed hearings, non-disclosure and representatives who are not allowed to actually represent claimants that is now institutionally adopting views that Megarry J expressed as ones that “do not, I think, do themselves justice.”

For a good write up of the legal issues in this case (Kiani v The Secretary of State for the Home Department [2015] EWCA Civ 776) and how it develops previous caselaw see the post over on the UK Human Rights Blog.

And finally, by way of practical reference the issues in this case are, fortunately, not ones reps will frequently come across but may be seen by some civil service and national infrastructure unions. If you come across a these issues then they need to be escalated to senior full time officers of the union without delay.