Employment Act 2008
Tuesday 7th April 2009New Guidelines for disciplinary and grievance procedures come into force on 6 April 2009 which are designed to simplify dispute resolution in the workplace. Backhouse Jones solicitors, James Backhouse and Steven Meyerhoff, MILT provided a seminar highlighting the relevant provisions.
Background
Since October 2004 both employers and employees have struggled to come to terms with the statutory disciplinary and grievance procedures which imposed obligatory minimum standards that parties must comply with when invoking disciplinary action or grievances. Failure to do so resulted in Tribunals imposing sanctions against the offending party.
Whilst the statutory procedures encouraged workplace resolution, the independent Gibbons Report (commissioned by the government), concluded that the procedures where overburdening on both employers and employees which resulted in unintended consequences and decisions in Tribunals that were guided more by administrative errors by parties as opposed to the administration of justice. Accordingly, the appeal courts have been flooded with challenges to the interpretation of the legislation resulting in greater legal costs and less workplace dispute resolution.
What Changes?
The main features of the Employment Act 2008 are:
The current statutory disciplinary and grievance procedures are repealed;
Non-compliance with disciplinary and grievance procedures will no longer result in an automatically unfair dismissal;
A new ACAS Code of Practice will be introduced for use during disciplinary and grievance procedures. The code does not apply to redundancy situations;
In cases of non-compliance, the Tribunal a discretionary power to increase compensatory awards.
Currently, a failure to follow the statutory procedures will result in the dismissal being automatically unfair. Under the Employment Act 2008 such a failure will not result in an automatically unfair dismissal finding. Instead, ACAS have produced a Code of Practice, which provide a non-binding procedure that should be followed.
Although the Codes of Practice do not set a binding procedure to be followed they do set out the basic requirements of what is considered fair and reasonable behaviour in most cases. Furthermore, ACAS have also issued guidance on the new Codes of Practice. Both documents are available on the ACAS website
The procedures contained in the Code of Practice can be summarised as follows:-
Disciplinary Procedure
- Investigation to be carried out without delay;
- Any suspension should be brief;
- The employee must be notified in writing that disciplinary action is being considered. Such notice should include date of hearing, the grounds for the hearing and any evidence in support;
- Hold a meeting without delay;
- Communicate decision in writing, confirming right of appeal;
- Appeal – grounds provided in writing, a meeting should be held without delay.
- The decision should be communicated in writing.
Grievance Procedure
- Employee to set out grievance in writing if the matter cannot be resolved informally;
- A meeting should be arranged without delay;
- Any decision should be communicated in writing, and the actions to be taken by the employer should be detailed;
- Right of appeal;
- Grounds of appeal should be sent in writing;
- Meeting held and the decision should be communicated in writing.
The employee’s right to be accompanied to any meeting still applies.
One problem which has frequently arisen under the old rules is where employees submit a grievance during a disciplinary process. The new rules have clarified the issue and confirm that if an employee decides to submit a grievance whilst disciplinary action is being conducted, the disciplinary matter should be put on hold until the grievance has been resolved. However in circumstances where the disciplinary and grievance relate to the same matter, it may be appropriate to for the employer to resolve the matters together.
Conciliation
Under the repealed act ACAS were restricted to limited periods of conciliation. However this provision will be removed from 6 April 2009 and ACAS will be under a duty to promote settlement at any time. This should encourage settlement and lead to a reduction in the number of cases being heard by Tribunals.
Transitional Provisions
There will be a period of transition between the new and old laws. The relevant dates for using the new procedures will be;
Disciplinary and Grievance
If the act happened on or after 6 April 2009 the new Employment Act 2008 and the Code of Practice should be followed. However, if by 6 April 2009, a step 1 or “calling in” letter has been sent then the old procedure should be followed.
Continuing Acts
In circumstances where the employee has a grievance which began before 5 April 2009 and is still continuing, the old statutory procedures will apply until;.
- 4 July 2009 for those claims which are subject to a 3 month time limit; and
- 4 October 2009 for those claims with a 6 month time limit.
Summary
The new code provides a sensible and workable return to employer/employee relations. Whilst procedures remain in place for Tribunals to penalise employers who, without justification, dismiss employees without adhering to any procedures, they allow a greater flexibility in the approach adopted by employers. It is not possible to have a “one system fits all” regime and the new code reflects this approach. Understandably, it is anticipated that there will be a bedding in period whilst employers, employees, lawyers and the Tribunals get to grips with the changes, however, in the medium term it is expected that disputes will be resolved in the workplace and ultimately, there will be fewer cases heard in Tribunal.
For further information please contact Steven Meyerhoff on 01254 828 300 or at steven@backhouses.co.uk.
