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Discipline and Grievance Procedures - All Change?
07 January 2009
The statutory dispute resolution procedures (DRP), introduced in
2004, were hoped to encourage parties to use internal procedures
rather than employment tribunals to resolve difficulties. However,
they appear to have achieved the exact opposite: they have made
procedures more formal, complex and technical; confusion over the
technicality of the regime has led to more tribunal claims; and
less focus is placed on the substance of claims and resolving of
disputes than on the technicalities.
Broadly, the DRP requires a fire service to complete (as a
minimum) the statutory disciplinary/dismissal procedure before
dismissing or disciplining an employee. Failure to do so will make
a dismissal automatically unfair and will result in an uplift of
between 10% and 50% to compensation. If the employee is responsible
for the procedure not being completed, then any compensation may be
reduced by between 10% and 50%.
In the majority of complaints not concerning dismissal, the
employee is required to have brought a grievance before they can
bring a complaint to an employment tribunal. Failure to do so
will bar the employee from bringing a claim. This requirement
has caught out many employees (who have tried to bring tribunal
complaints without having first brought a grievance); and many
employers who received a written complaint but did not appreciate,
perhaps because of the apparent informality of the complaint, that
this amounted to a statutory grievance.
Following an independent review the Government decided to repeal
the DRP and the changes will be implemented in April 2009.
ACAS’ revised Code of Practice will be implemented at the same
time. Until that point, therefore the DRP will continue to
apply.
The future
- The DRP will cease to apply. Employees will no longer be
prevented from bringing non-dismissal claims when they have not
lodged a grievance.
- There will no longer be a requirement for employees to wait 28
days after issuing a step 1 letter in a grievance before submitting
a non-dismissal claim.
- The law on automatic unfair dismissal will no longer apply
where the statutory dismissal procedure has not been completed.
Failure to follow internal disciplinary or grievance procedures can
still make a dismissal unfair.
- The automatic uplift or reduction on award of between 10% and
50% for failure to follow the statutory procedures will no longer
apply.
- The extension of time for presenting dismissal-related claims
where an employee reasonably believes an appeal against dismissal
is ongoing will no longer apply.
- The extension of time for non-dismissal claims where or a
grievance has been submitted within the three month limit will no
longer apply.
- An unreasonable breach of a provision of the ACAS Code of
Practice by an employee or employer may lead to a discretionary
adjustment to compensation of up to 25% if the tribunal considers
it just and equitable. Examples not specifically referred to in the
existing statutory procedures include:-
- Suspensions on full pay should be kept as brief as
possible
- Warnings should set out the nature of the misconduct, or poor
performance, improvement sought and the period for which the
warning will apply
- Disciplinary rules should give examples of gross
misconduct.
A procedurally flawed dismissal will be unfair but the tribunal
will be able to reduce compensatory award if it believes the
employee would have been dismissed if the correct procedure had
been adhered to. Issues such as who conducts the meetings and how
evidence is assessed will continue to be of great importance as a
failure in one of these areas, even though it may not breach the
ACAS Code, could still result in a dismissal being unfair.
Overall, the proposed changes are anticipated to be an
improvement on the present procedures. It is likely that more
emphasis will be placed on informal resolutions and a focus on the
reasonableness of each party’s conduct as opposed to rigid process.
However, with the changes not being implemented until April 2009
and the likelihood that it will be some time before the residue of
matters based on the DRP have been disposed of, it is likely we
will be dealing with matters involving the present procedures for
some time yet.
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