INSTITUTE OF EMPLOYMENT RIGHTS

DISCIPLINARY and

GRIEVANCE PROCEDURES

Steve Cottingham

October 2010

Pre – 2004

  • Good practice for employers to provide clear disciplinary and grievance procedures
  • ACAS Codes of Practice
  • Implied term – the right to a response to a grievance raised in good faith – W.A. Goold (Pearmak) Ltd –v- McConnell [1995]
  • S10 Employment Relation Act 1999- the right to be accompanied.

1. STATUTORY DISPUTE RESOLUTION

Introduced by Ss29 and 31-44 (and Schedules 2-4) of the Employment Act 2002 (“EA2002”) and the Employment Act 2002 (Dispute Resolution) Regulations 2004, S1 2004/752 (“EADR”).

From 1st October 2004

Aims:-

  • Early resolution of employment disputes through the establishment and use of internal procedures
  • Reduced workload for Employment Tribunals.
  • Reduced cost to employers.

a.Key Features

i.Standard DDP

Modified DDP

Standard GP

Standard GP

ii.3 step approach

iii.DDPs applied to most dismissals (including non-renewal of a full term contract)

GPs applied to most other employment claims including discrimination – see the jurisdictions listed in EA2002 Schedule 4.

iv.Time limits – extension to the standard 3 month time limit.

Reg 15(1)(a) EADR – time limit extended in dismissal cases where at the end of the primary 3 month limitation period, the employee has reasonable grounds to believe that a dismissal or disciplinary procedure was still being followed.

Reg 15(1)(b) EADR- time limit was extended in Schedule 4 cases where the employee had sent a written grievance to the employer within 3 months whether or not the grievance procedure was still being followed at the end of the primary limitation period.

v.Default: Failure by the employer to follow or complete the applicable DDP rendered the dismissal automatically unfair – S98A(1) ERA 1996

vi.Compensation

Increased by a mandatory 10% in the absence of exceptional circumstances, with a discretion to increase to 50% - S31(3) EA 2002.

Reduced in a similar manner where the employee had defaulted.

vii.Procedure

S32 EA 2002 – An employee had to issue a Step 1 grievance letter, then wait 28 clear days, before presenting the claim to an Employment Tribunal.

viii.Applied to employees but not workers.

b.Litigation

Main Issues:

i.The requirements of Steps 1 and 2 of the standard DDP.

ii.The precise relationship between GPs and DDPs.

iii.What was and was not a grievance?

iv.Extensions of time

v.Compensation provisions

2.REVIEW

Gibbons Report March 2007 recommended:-

  • Abolition of statutory procedures.
  • Less presriptive measures to promote internal alternative dispute resolution.
  • Employment Bill 2007 – Royal Assent 13th November 2008.
  • Employment Act 2008 (Commencement No 1 and Transitional Provisions) Order 2008 Sl 2008/3232 (“The 2008 Order”)
  • New ACAS Code of Practice 6th April 2009.

3.TRANSITITION ARRANGEMENTS

Trigger events:

Where a trigger event occurred before 6th April 2009, the old regime applied. Where it was on or after 6th April 2009, the new regime applies:-

i.Grievances:

a)If the date of the action, or failure to act, complained of occurred wholly before 6th April 2009, the old regime applied.

b)The old regime also applied to a case where the action complained of began before 6th April 2009 and continued after that date where the employee submitted a written grievance or commenced Employment Tribunal proceedings on or before 4th May 2009 in most cases, on or before 4th October 2009 in cases with a 6 month time limit (eg equal pay, redundancy, dismissal in connection with industrial action).

ii.Dismissals

a)Where the Step 1 letter was sent or Step 2 meeting took place before 6th April 2009, the old regime applied.

b)If no Step 1 letter or Step 2 meeting then the trigger date is the date of the disciplinary action or dismissal.

4. NEW PROCEDURES

Part 1 Employment Act 2008
  • Repeals statutory procedures
  • ACAS Guide on Disciplinary and Grievances at Work.
  • Introduces new S207A TULR(C)A 1992.
  • Schedule A2 – lists the statutory provisions to which S.207A applies.

a.Changes

i.Not mandatory

ii.Not prescriptive

iii.Applies to employees only

iv.Similar to the Step 3 procedure

v.No modified procedures

vi.Does not appear to cover non-disciplinary dismissals e.g. for redundancy or ill health.

vii.Suggests that an employee be accompanied at a formal investigatory meeting – ACAS COP Para 7.

viii.Contemplates suspension of the disciplinary procedure where certain types of grievance are raised – ACAS COP Para 44.

ix.suggests that a disciplinary penalty should never be increased on appeal.

x.Advises that where disciplinary action against a lay union representative is being considered, the employer should discuss the issue with a union official at an early stage – ACAS COP Para 29.

xi.Allows Employment Tribunals to increase compensation by up to 25% where any employer has unreasonably failed to comply with all stages of the ACAS COP

But an employer’s unreasonable failure to follow the ACAS COP does not render a dismissal automatically unfair or entitles an employee to judgment in a grievance based claim. Ss98A(1) and (2) are repealed. The decision in Polkey –v- A.E. Dayton Services Limited [1998] is effectively revived.

xiii.The ACAS COP proposes more leeway for small businesses – ACAS COP Para 30.

xiv.No extension of the basic 3 month time limit.

5.THE FUTURE

i.A statutory duty requiring all employers to observe basic disciplinary and grievance procedures.

ii.Application of disciplinary or grievance procedures to all Employment Tribunal claims.

iii.Extension of these procedures to workers.

iv.Breach of the relevant procedure to render a dismissal automatically unfair, and to result in judgment for the Claimant in a grievance based claim.

v.A revised ACAS COP to support and explain the operation of the disciplinary and grievance procedures. An enhanced role for ACAS to promote resolution of employment disputes before commencement of legal proceedings.

vi.An increase in time limits for all Employment Tribunal claims to 6 months.

vii.A statutory right to be accompanied to all disciplinary and grievance hearings whether informal or investigatory.

viii.An automatic increase or reduction of compensation by 10% where one party fails to comply with the relevant procedure – subject to a defence of exceptional circumstances. Discretion for the Employment Tribunal to raise the increase/decrease to a maximum of 50%.

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