1. “NEW ERA FOR GRIEVANCE AND DISCIPLINE?”
Richard Arthur
Thompsons Solicitors
15 October 2008
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2. The 2004 Procedures:
3 step procedure which must be followed by an employer considering dismissing an employee, or by an employee considering bringing an ET claim;
Written notification, meeting, appeal;
Bar on commencing ET claim unless grievance filed and 28 days expires;
Extension of time limits;
Adjustments to compensation;
Polkey reversal.
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3. The Gibbons Review:
“… although there is some evidence that the procedures have encouraged more early resolution of disputes, they have also created a high administrative burden and had significant unintended consequences which outweighed the benefits.”
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4. Government Consultation Response:
76% of respondents favoured repeal;
Restoration of Polkey;
“Short, non-prescriptive ACAS Code of Practice”;
“Comprehensive accompanying non-statutory ACAS guidance”;
Simple claims to be determined without hearing;
Removal of fixed conciliation periods;
Simplification of ET forms.
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5. Employment Bill: Repeal of statutory dispute resolution procedures;
“Reversal of the Polkey reversal”;
Adjustment of awards by up to 25%;
Determination of proceedings without hearing if all parties consent;
Duty to conciliate, repeal of fixed conciliation periods;
Compensation for financial loss for unlawful deductions from wages/redundancy payment claims.
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6. a “Relevant Code of Practice” applies; and
Adjustment of awards
If:
a “Relevant Code of Practice” applies; and
the employer/employee has failed to comply with that Code of Practice; and
that failure was “unreasonable”
the ET may, if it considers it just and equitable to do so, increase/reduce any award by no more than 25%.
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7. Draft ACAS Code of Practice:
Short and “principles based”;
“A failure to follow the Code does not, in itself, make a person or organisation liable to proceedings”;
“Employers and employees should do all that they can to resolve disciplinary and grievance issues in the workplace”;
“Recourse to an Employment Tribunal should only be a last resort”
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8. Inform the employee of the problem; Hold a meeting;
ACAS Code: Discipline
Establish the facts;
Inform the employee of the problem;
Hold a meeting;
Allow the employee to be accompanied;
Decide on appropriate action;
Provide an opportunity to appeal;
Special cases: trade union officials.
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9. “Let the employer know the nature of the grievance”; Hold a meeting;
ACAS Code: Grievances
“Let the employer know the nature of the grievance”;
Hold a meeting;
Allow the employee to be accompanied;
Decide on appropriate action;
Allow the employee to take further if not resolved;
Special cases: bullying, harassment and whistleblowing.
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10. Sound familiar?
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11. ACAS Code of Practice: Issues
Apparently relevant to liability and compensation adjustment;
Exactly when does the 25% uplift/reduction apply (eg right of accompaniment)?
Reintroduction of 2004 procedures by the back door?
What obligations are placed on employees in relation to grievances?
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12. More Detailed ACAS Guidance:
Has “no status at an Employment Tribunal”;
Expands upon the Code of Practice.
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13. Complex transitional provisions likely;
Implementation:
Projected: April 2009;
Complex transitional provisions likely;
“Trigger” for application of new procedures likely to be whether the date of the dismissal or disciplinary action/the event giving rise to the grievance is before 1 April 2009;
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14. Transitional provisions while the two regimes work in parallel;
Conclusions:
Likely to be a “throughput” period of al least a year as cases under the 2004 regime work their way through;
Transitional provisions while the two regimes work in parallel;
Certain aspects of the case law on the 2004 procedures may survive-eg what is a grievance?
We are not returning to the pre-2004 world;
There will be opportunities for adjustments/reductions;
More procedures will need to be followed-grievances, meetings and appeals;
It remains to be seen just how “new” the new world will be.
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