Right Result Wrong Route

08 May 2015

Ms Jinadu was a bus driver. She was reported to have pulled out into the path of cars, driven one- handed, clipped kerbs, showed poor lane discipline, run a red light and accused a motorist who complained about her of being drunk. She refused to go to her employer's training centre for a skills assessment and challenged the use of CCTV footage of her driving. She was suspended. In the subsequent disciplinary hearing she reiterated her refusal:

"No, I am just not going to go. You will have to sack me because I am not going. I will draw blood before going."

To nobodies surprise but her own Ms Jinadu was dismissed for insubordination. Predictably she appealed alleging discrimination.

At the appeal (it's important this was designated a re-hearing) Ms Jinadu withdrew her allegations and accepted a skills assessment. Her appeal was adjourned pending the outcome (we're not told why) but the following day she complained of being bullied into the assessment. Then Ms Jinadu sustained a knee injury so it wasn't until 4 months later that she took the assessment. This led to corrective training and a further assessment which she failed.

Ms Jinadu's appeal was reconvened. She retaliated with complaints of racial, age and gender harassment. The complaints were rejected and the dismissal confirmed, apparently for competence and public safety.

The Employment Tribunal decided the dismissal was fair. It seems to have relied on insubordination but there was no finding about the outcome of the appeal (i.e. the re-hearing).

In the EAT it was argued the disciplinary process should have been suspended for investigation of the alleged harassment. The EAT robustly rejected this. It was also argued the dismissal was for capability not conduct and the company's manuals say drivers will only be at risk of a capability dismissal if they fail an assessment twice after corrective training. The EAT took the point and ordered the tribunal reconsider the case to "make proper findings" about (1) the employer's reason for rejecting Ms Jinadu's appeal and (2) the reason for and reasonableness of her dismissal in that context.

I have seen this interpreted as guidance that employers are not obliged to suspend disciplinary proceedings pending investigation of grievances. That's going too far for me but it is a good illustration of the extent to which the procedural game dominates disciplinary action and how apparently straightforward issues can grow like topsy unless managed pro-actively.