Back to the future?
Date: 10 April 2009
Authors: Cristian Ley
Issue: Vol 159, Issue 7364
Categories: Features, Employment, Tax
When the government introduced the statutory dispute resolution procedures in October 2004 the aim was to provide a means for problems to be raised and discussed in the workplace and in some cases remove the need to resort to employment tribunals. However, as we all know, even the best laid plans do not always work out as one intends and in 2006 the government asked Michael Gibbons—former chairman of DTI Employment law simplification panel—to review the operation of the procedures and make recommendations for their reform and/or repeal.
Gibbons found that the statutory dispute resolution procedures had significant unintended negative consequences which outweighed any benefits they carried in terms of resolving workplace disputes. This report concluded that the statutory dispute procedures should be repealed, which they were on 6 April 2009 by virtue of the Employment Act 2008.
What replaces the statutory grievance, disciplinary and dismissal procedures?
The revised Acas Code of Practice (the code) will govern grievances, disciplinary proceedings and dismissals in place of the statutory procedures. In relation to grievances, the code recommends that:
● Employees should tell their employer the nature of the grievance.
● The employer should hold a meeting to discuss the grievance.
● The employer should tell the employee that they may be accompanied at the meeting.
● After the meeting the employer should decide on appropriate action.
● The employer should allow the employee to take the grievance further if not resolved.
In relation to disciplinary proceedings and dismissals, the code recommends that:
● The employer should establish the facts of the case in hand.
● The employer should inform the employee of the problem.
● The employer should hold a meeting with the employee to discuss the problem.
● The employer should tell the employee that they may be accompanied at the meeting.
● After the meeting the employer should decide on appropriate action.
● The employer should provide the employee with the opportunity to appeal.
What happens if the procedures aren't followed?
The Employment Act 2008 states that if either party unreasonably fails to follow the code then, at relevant subsequent tribunal proceedings, an award to the claimant may be reduced or increased by up to 25% depending on who is at fault. The types of claim to which this applies are:
● unfair dismissal;
● all discrimination claims;
● claims to redundancy payments;
● national minimum wage claims; and
● trade union-related claims.
The power to reduce or increase the award is discretionary and it remains to be seen how employment judges will apply this provision and what will constitute an “unreasonable” failure to follow the code.
Employers will also have to bear in mind the application of transitional provisions contained in secondary legislation. In a grievance situation, if the action about which the employee complains occurred wholly before 6 April 2009, the existing statutory grievance procedure applies. It gets a bit more complicated where the action complained of began before 6 April but continues after that date. Broadly, if 4 July 2009 passes and the employer hasn't convened a grievance hearing then any subsequent tribunal claim will be governed by the code rather than the current statutory procedure.
The transitional provisions apply as above to all claims except equal pay claims and claims to redundancy payments. For equal pay and redundancy payment claims the changeover date is 4 October rather than 4 July 2009.
With the exception of the ability of a tribunal to increase awards by up to 25% as outlined above, post-6 April 2009 the world of grievances and dismissals has returned to where it was in 2004 when Jill Halfpenny won Strictly Come Dancing and Steve Brookstein won the X Factor. Many will wonder what all of the effort HR professionals made getting to grips with the new rules was for and, with the exception of the Poll Tax, it is difficult to think of a piece of legislation that has been so completely repealed.
As we head “back to the future” we must all hope that those who govern us leave the law on grievances and dismissals well alone—at least until all those who have witnessed this extraordinary reversal are all safely retired!
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