The People Bulletin

Dispute Resolution, the name given to employment law procedures, originally came in to force in October 2004. Its purpose was to enable employers to resolve disputes with employees more effectively and early on to prevent employees from bringing Employment Tribunal claims. Four years and much consultation later, the Dispute Resolution procedures have been repealed by the Employment Act 2008 which came into force on 6 April 2009.

To accompany the Act, there is a new ACAS Code of Practice ¹ which is essentially a simplified version of the old one. Employers will still need to:

• write to the employee setting out the reasons for the disciplinary meeting;
• give the employee a right to be accompanied by a work colleague or a trade union official;
• confirm the reasons for the disciplinary warning in writing, and;
• give the employee a right of appeal against the decision.

The code advises employers to take prompt action when dealing with issues of conduct, and to have a consistent approach when disciplining members of staff.

More stringent investigation

One change is that employers now need to hold a more formal investigation process, to establish the facts and gather supporting evidence, before having a disciplinary meeting for a conduct issue. For the first time, the code states that: ‘In misconduct cases, where practicable, different people should carry out the investigation and the disciplinary meeting’. To a certain extent, this will depend on the size and resources of a business.

In terms of the grievance procedure, the code emphasises that employers should consider an adjournment of a grievance meeting to carry out further investigation of the facts, where necessary.

The use of the disciplinary procedure when disciplining or dismissing staff can help an employer demonstrate to an Employment Tribunal that they have been reasonable in all the circumstances when defending an unfair dismissal claim. Hearing a grievance raised by an employee at a formal meeting can also help prevent issues such as ongoing discrimination and thwart claims by employees for deductions of pay or holiday entitlement, where there have been misunderstandings.

If an employer faces a claim and the Tribunal considers that it was unreasonable that the employer had not followed the ACAS Code of Practice, the Tribunal can increase any award by 25%. Conversely, if the employee did not comply with the code, (for example by failing to attend disciplinary meetings) the award made to an employee could be decreased by 25%.

The repeal of the statutory procedures

As a result of the repeal of the statutory dismissal, disciplinary and grievance procedures in Great Britain, employers no longer have to follow a statutory dismissal procedure when dismissing employees for long-term sickness absence, in redundancy situations or at the end of a fixed-term contract. However, to meet the reasonableness test under s98(4) Employment Rights Act 1996 in carrying out a fair dismissal, it is still recommended to have formal meetings, for the employee to be accompanied by a work colleague or trade union official and to give the employee the opportunity of appealing against a dismissal decision.

The repeal of the statutory dismissal and disciplinary procedures only apply to Great Britain and not Northern Ireland. There are also transitional arrangements which apply in Great Britain as the cases under the statutory procedures work their way through the legal process.

In Great Britain, if the employer’s letter setting out the circumstances which lead the employer to contemplate dismissing or disciplining the employee, was sent out to the employee on, or before 5 April 2009, the statutory dismissal and disciplinary procedures (the ‘old law’) still applies.

Grievances raised by an employee relating to an action which occurred wholly or before 6 April 2009 follow the statutory grievance procedure.

If the employee raises a grievance about an action which began on or before 5 April 2009 and continues beyond that date, the statutory grievance procedure and the ‘old law’ also applies. There are however, final cut off dates. The employee has to write his grievance letter to the employer, or present a complaint to the Tribunal before 4 July 2009 for the ‘old law’ to apply. This is for potential claims with a three-month time limit such as discrimination or unfair dismissal. For potential claims with a six month time limit, such as redundancy pay or equal pay, the cut off date is 4 October 2009.

Top tips for managing grievances

• Employers should hold a meeting with the employee to discuss the grievance as soon as possible.
• Both parties should make every effort to attend the meeting.
• Allow the employee to be accompanied by a companion, such as a fellow worker or trade union official.
• Following the meeting, the employer should decide on what action, if any should be taken.
• Communicate this decision in writing to the employee as soon as possible.
• Employees should write a letter of appeal to their employer if they do not agree with the decision.
• Any appeals received must be heard without unreasonable delay by a manager not previously involved in the case.
• The result of the appeal should be communicated in writing as soon as possible to the employee.

Top tips for managing discipline

• Before any action is taken, employers must carry out a thorough investigation to determine the facts of the case, using a different person to investigate the case from the person holding the disciplinary hearing. The investigation is to gather evidence to use at the disciplinary hearing.
• If an employee is to be suspended prior to a hearing, this period must be as short as possible. Employers should also point out to the employee that suspension is not an indication of the outcome of the disciplinary action.
• If an employer decides there is a case to answer, they should inform the employee in writing as soon as possible, giving details of the alleged misconduct or poor performance and the potential outcome. The letter should also include the arrangements for the disciplinary meeting and the witness statements. Witness statements and other evidence should always be provided in advance of the hearing to enable the employee to prepare the case.
• Both parties should make every effort to attend the meeting.
• Allow the employee to be accompanied by a companion, such as a fellow worker or trade union official.
• Following the meeting, the employer should decide on what action, if any should be taken.
• Communicate this decision in writing to the employee as soon as possible.
• Allow the employee the opportunity to appeal the decision. This should be made in writing to the employer.
• Any appeals received must be heard without unreasonable delay and by a manger not previously involved in the case, where possible.
• The result of the appeal should be communicated in writing as soon as possible to the employee.

1 www.acas.org.uk/index.aspx?articleid=2174 contains links to the revised Code of Practice as well as the non-statutory guidance on handling discipline and grievance solutions in the workplace