I have heard that the statutory dismissal and grievance procedures may be repealed. Can you explain what will be put in place to replace them?

May 15, 2008

Some months ago, the Employment Bill was revealed. One of the most notable proposals was that the existing statutory dispute-resolution procedures (including the rule that a dismissal without following the dismissal procedure is automatically unfair) would be repealed. Although brought in to reduce employment tribunal claims and encourage early resolution to disputes, the procedures have in practice led to the use of formal processes where problems may have been resolved informally according to the Gibbons Review of Employment Dispute Resolution in Great Britain. In addition, they have raised many complex legal and practical questions. HR professionals and employment lawyers alike have watched case law shape the interpretation of the regulations, as questions such as “what constitutes a grievance?”, which seemed relatively simple before October 2004, suddenly became topics of legal debate.

Even education institutions with sophisticated disciplinary and grievance procedures, in some cases mirroring the adversarial approach of the employment tribunal system, have found it hard, on occasions, to satisfy the statutory dispute resolution procedures.

The Employment Bill aims to reintroduce an emphasis on a commonsense approach to dispute resolution by both employers and employees. The obligations in the statutory procedures will be replaced by a requirement for both parties to comply with the codes of practice for resolving disputes developed by the Advisory, Conciliation and Arbitration Service (Acas). Currently, employers who breach the statutory dispute-resolution procedures face uplifts of between 10 and 50 per cent on any employment tribunal awards made against them, with a corresponding reduction in awards for successful claimants who fail to comply; under the new regime, if either party unreasonably fails to follow the codes of practice, the culpable party could face an increase or reduction in compensation of up to 25 per cent.

A draft new Code of Practice on Discipline and Grievance has now been issued by Acas for consultation. It is envisaged that this will come into effect in April 2009 at the same time as the legislative changes.

The draft code consists of three main sections:

• A brief introduction, which sets out some basic principles for employers dealing with discipline and grievance issues, including the need for promptness, consistency between similar cases, the importance of keeping accurate records and so on

• A section on discipline, which sets out the key stages of handling disciplinary problems in the workplace. Sub-sections deal with the need to establish the facts, inform the employee of the problem, hold a meeting, allow the employee to be accompanied, decide on appropriate action and allow a right of appeal.

• A section on grievances. The requirements here are also dealt with under subheadings, which explain the need to let the employer know the nature of the grievance, hold a meeting, allow the employee to be accompanied, decide on appropriate action and allow the employee to take the grievance further if not resolved.

The code contains no requirement for an employee to raise a grievance before issuing tribunal proceedings.

Does the new code indicate a return to simpler times from April 2009? Time will tell. The indications are, however, that it will lead to a practical approach to both discipline and grievance issues in the workplace.

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