A new system - Disciplinary and Grievance Procedures from 6 April 2009
Since their introduction in 2004 the statutory dispute resolution procedures, known as the statutory disciplinary, dismissal and grievance procedures, have been the source of much complaint by Employers, Solicitors and Judges. The statutory disciplinary, dismissal and grievance procedures will cease to apply to new disputes from 6th April 2009. This means that a dismissal will not be automatically unfair simply because the employer has failed to follow a proper disciplinary procedure. However, the dismissal may still be unfair as Employment Tribunals will consider whether employers have acted in a broadly fair manner, and they will take into consideration the new ACAS Code of Practice on Disciplinary and Grievance Procedures.
Although the new Code is not legally binding and a failure to follow the Code does not in itself make a person or employer liable to a penalty, a failure by either party to follow the Code will be taken into account by an Employment Tribunal as evidence when assessing a case. Employment Tribunals may also in certain cases increase an award of compensation by up to 25% if they find that an employer failed unreasonably to follow the guidance set out in the Code, or decrease compensation by up to 25% for an employee’s unreasonable failure. The Code provides basic practical guidance for employers and employees to handle disciplinary and grievance situations that arise in the workplace.
The abolition of the statutory procedures will also mean that employees will not have to do a written grievance before making a non-dismissal claim, although the guidance set out in the Code suggests that it will help their claim to do so. The 6 month time limit for non-dismissal claims will also be abolished and there will be a 3 month time limit for all Employment Tribunal claims, including constructive unfair dismissal. Non-dismissal claims includes claims for unpaid wages, notice pay, redundancy pay and all discrimination claims.
Like the statutory procedures, the Code only applies to employees (as opposed to casual workers). The Code does not apply to redundancy dismissals or to the non-renewal of fixed term contracts. Even though the Code does not apply to redundancy dismissals, this does not mean that employers no longer have to offer an employee an appeal against the decision. Disregarding the Code, any failure to offer an employee the right to appeal could still make a dismissal broadly unfair.
The statutory dismissal and disciplinary procedure will continue to apply where on or before 5th April 2009:-
a. the employer has dismissed the employee
b. the employer has sent an invite to a disciplinary/dismissal meeting or held the meeting
c. the employer has taken disciplinary action against the employee.
The statutory grievance procedure will continue to apply where:-
a. the action complained of occurred wholly before 6th April 2009
b. the action complained of began before 5th April 2009 and continues beyond that date and the employee has done a written grievance or made a claim to the Employment Tribunal (before the deadline).
Employers and employees should always endeavour to resolve disciplinary and grievance matters in the workplace. Many disciplinary and grievance matters can be resolved informally, and the Code is in place to assist employers and employees and is intended to provide a standard of reasonable behaviour in most situations.
Employers should always take specific legal advice in each individual situation. It is also advisable to keep a written record of all the disciplinary and grievance matters that they deal with. Employers should equally have dedicated policies about disciplinary, equal opportunities, bullying and harassment.
March 2009
This article gives a general overview only and the legal position at the time of writing this article. It cannot be relied upon in any particular case. Specific legal advice must always be considered to include consideration as to whether the legal position contained in this article has changed since going to print. For further information and advice, please contact Paul Archer or Lauren Harkin on 01793 527141 or alternatively by email on Paul.Archer@lemon-co.co.uk or Lauren.Harkin@lemon-co.co.uk
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<p><strong><a href="http://www.lemon-co.co.uk/article_new-system.php">A new system - Disciplinary and Grievance Procedures from 6 April 2009</a></strong><br />
Since their introduction in 2004 the statutory dispute resolution procedures, known as the statutory disciplinary, dismissal and grievance procedures, have been the source of much complaint by Employers, Solicitors and Judges...</p>
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