Samuel Smith Old Brewery (Tadcaster) v Marshall and another EAT/0488/09

disciplinary and grievance procedures | grievance appeal hearing | disciplinary hearing

The Employment Appeal Tribunal (EAT) has held that it will only rarely be unfair for an employer to proceed with a disciplinary hearing prior to holding a related grievance appeal hearing.

Mr and Mrs Marshall are a husband and wife who worked at an independent brewer that ran 200 pubs. When the employer began to struggle financially, it decided that it needed to reduce the number of staff working hours from the existing 84 hours per week (the couple had opted out of the maximum 48-hour working week) to 45 hours per week. Mr and Mrs Marshall were unhappy with the reduction and raised a grievance. Although the employer agreed to compromise to a certain extent, the couple wished to continue with their formal grievance. In the meantime, they did not implement the revised working hours in their pub. Their grievance was dismissed and they appealed. Despite being reminded that there was a clause in their contracts of employment that the employer could require managers to amend working hours, they insisted that they would not change the hours until the grievance process was exhausted.

The employer began disciplinary proceedings against Mr and Mrs Marshall for failure to follow the management instruction. The disciplinary hearing was scheduled to take place one week before their grievance appeal hearing, but the couple (who had received union advice to that effect) flatly refused to attend the disciplinary hearing until the grievance procedure had been exhausted. The disciplinary hearing proceeded in their absence and they were dismissed for gross misconduct. A warning was not considered appropriate because of the couple's immovable position.

An employment tribunal upheld Mr and Mrs Marshall's unfair dismissal claim. It said that, while their refusal to obey a management instruction was a potentially fair reason for dismissal, the employer's decision to hold the disciplinary hearing in the couple's absence before hearing their grievance appeal could be criticised. In particular, the tribunal noted that the couple would have been likely to back down once the grievance process had finished. It said that all that was needed was a delay in the disciplinary process for one week. However, it did reduce Mr and Mrs Marshall's compensation by 10% because of the intractable stance that they had taken.

The EAT disagreed. It highlighted that Mr and Mrs Marshall did not have a clause in their contracts of employment providing that disciplinary proceedings should be frozen pending the outcome of a related grievance procedure (a "status quo" clause) and that there is nothing in the Acas code of practice on disciplinary and grievance procedures (PDF format, 1.58MB) (on the Acas website) that requires the grievance to be heard first. It also pointed out that the employer's stance was reasonable, stressing that profits had increased since the new working hours had been implemented among the employer's workforce. The EAT went on to say 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. The EAT did say that claimants would have a stronger case where no grievance hearing at all has taken place.

The EAT went on to hold that, in any event, the employment tribunal had used the benefit of hindsight to decide that the couple would have stepped back from their "boycott" had their grievance appeal been unsuccessful. The tribunal had fallen into the trap of substituting its own views derived from hindsight, rather than considering only the knowledge available to the employer at the time.

Case transcript of Samuel Smith Old Brewery (Tadcaster) v Marshall and another (Microsoft Word format, 122K) (on the EAT website)

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