Suspending disciplinary proceedings to deal with grievance
Employees often submit grievances during the disciplinary process, either about the disciplinary process itself, or about the circumstances leading up to the decision to instigate disciplinary proceedings. In Jinadu v Docklands Buses Ltd, the EAT considered whether the employer was obliged to put the disciplinary process on hold, while an employee’s grievance was investigated.
Ms Jinadu was employed by Docklands Buses as a bus driver. When a car driver complained about the standard of her driving, her employer reviewed CCTV footage of the journey. The footage appeared to show Ms Jinadu driving one-handed, running a red light and pulling into the path of two cars. As Ms Jinadu refused to have a driving assessment at her employer’s in-house training centre, she was required to attend a disciplinary hearing.
During the course of the disciplinary hearing, Ms Jinadu raised a number of grievances, alleging that her manager was “against her”, that the driver who had complained about her had been drunk and that the employer should not be allowed to watch CCTV footage of her driving.
The employer did not suspend the disciplinary process to investigate Ms Jinadu’s allegations and she was dismissed for gross misconduct. Ms Jinadu lodged an unfair dismissal claim, claiming (amongst other things) that the dismissal was unfair because her employer should have put the disciplinary process on hold while it investigated her grievances. The Employment Tribunal held that the dismissal was fair. Ms Jinadu appealed to the Employment Appeal Tribunal, however the EAT rejected her arguments and her appeal was unsuccessful.
This case confirms that there is no general rule that a dismissal will be unfair if an employer carries on with disciplinary proceedings after an employee has lodged a grievance, without stopping to investigate the grievance first. Whether it is necessary to suspend the disciplinary procedure will depend on the nature of the grievance(s) raised and how it relates to the disciplinary proceedings. Each case will depend on its facts.
Small Business, Enterprise and Employment Act 2015: Employment law provisions
The Small Business, Enterprise and Employment Act (Commencement No.1) Regulations 2015 brought the following provisions of the Small Business, Enterprise and Employment Act 2015 into force on 26 May 2015:
- Any provision in a zero hours contract which prohibits a worker from doing work for anyone else is now unenforceable. This new restriction applies to existing zero hours contracts as well as new ones; and
- The maximum penalty for non-payment of the National Minimum Wage has increased to £20,000 for each affected worker. The maximum penalty was previously £20,000 in total, regardless of how many employees had been underpaid by a particular employer.
Requirement for Muslim jihab not to present a tripping hazard was not discriminatory
In Begum v Pedagogy Auras UK Ltd the EAT considered whether an nursery’s uniform policy indirectly discriminated against an job applicant on the grounds of religion or belief.
Indirect discrimination on the grounds of religion or belief under the Equality Act 2010 occurs where:
- A applies to B a provision, criterion or practice (PCP);
- B has a particular religion or belief (or lack of religion or belief);
- A applies that PCP to persons not of the same religion or belief as B;
- The PCP puts people of B’s religion or belief (or lack of religion or belief) at a particular disadvantage compared to other people;
- The PCP puts B at that disadvantage; and
- A cannot justify the PCP by showing it to be a proportionate means of achieving a legitimate aim.
Ms Begum was a Muslim and wore a jihab. A jihab is a full-length garment worn by some Muslim women that covers the body from the neck down. Jihabs come in different lengths, some to below the knees, others to the ankle. The jihab which Ms Begum wore was a flowing, full-length one which reached at least to her ankles.
Ms Begum applied for a job as a nursery assistant at the Barley Lane Montessori Day Nursery (the “Nursery”). 25% of the staff working at the nursery were Muslim. At least four members of staff wore jihabs (head coverings) and one of those wore a full-length jihab. Muslims were accommodated at prayer times and time off was given for Ramadan.
Ms Begum applied for a job at the Nursery. Following a successful half-day trial, she was invited to an interview, at which she was offered the job. The Nursery manager noticed that Ms Begum’s jihab covered her shoes and asked her if she could wear a shorter jihab to work. The manager explained that whatever garment she wore could not present a tripping hazard. Ms Begum told the manager that she would discuss the issue with her family, however she never contacted the Nursery again. She told the Employment Agency who had arranged the interview that she had been insulted by the Nursery’s approach to uniform and refused to take the job.
Ms Begum lodged a claim against the Nursery in the Employment Tribunal. She claimed that the Nursery’s uniform policy indirectly discriminated against her on the grounds of her religion or belief.
When the Employment Tribunal rejected Ms Begum’s claim, she appealed to the EAT. However, the EAT rejected her appeal. As all the other Muslim women working at the Nursery could comply with the requirement that clothing must not present a tripping hazard, the PCP that clothing must not present a tripping hazard did not put Muslim people at a disadvantage compared to other people.
It is easy to see why, in this particular case, asking Ms Begum whether she might be able to wear a shorter jihab did not amount to discrimination. The fact that this was a tolerant workplace, where other Muslim wore hijabs and one of them already wore an ankle-length jihab, may have informed the Tribunal’s approach. However, this decision is particular to the facts of the case. Asking a job applicant this type of question in different circumstances could well amount to religious discrimination.