The Employment Act 2008 received Royal Assent on 13 November and should come into effect on 6 April 2009. Its main provisions are:
- it will repeal the statutory dismissal, disciplinary and grievance procedures;
- Tribunals will instead have the discretion to increase or reduce awards by up to 25% if the employer or employee unreasonably fails to comply with the new ACAS Code of Practice (see below);
- Tribunals will revert to being able to make Polkey reductions as they had done before the introduction of the statutory procedures;
- it will remove the current fixed conciliation periods and extend ACAS’s power in relation to conciliation; and
- trade unions will be able to exclude from trade union membership current or former members of political parties.
ACAS has produced a revised draft Code of Practice on Disciplinary and Grievance Procedures, which has received ministerial approval.
The main changes that appear in the revised draft of the Code are that:
- it will not apply to dismissals due to redundancy or the non-renewal of fixed-term contracts on their expiry;
- employees and their representatives (if appropriate) should be involved in the development of rules and procedures;
- in misconduct cases, different people should carry out the investigation and the disciplinary hearing;
- employees should be informed in writing if there is a disciplinary case to answer and should normally be provided with copies of written evidence including witness statements;
- at the disciplinary meeting the employer should explain the complaint against the employee and go through the evidence that has been gathered. The employee should be allowed to set out their case and answer any allegations that have been made. The employee should also be given a reasonable opportunity to ask questions, present evidence and call relevant witnesses. They should also be given an opportunity to raise points about any information provided by witnesses. Where an employer or employee intends to call relevant witnesses they should give advance notice that they intend to do this;
- with respect to grievance procedures, should a grievance not be resolved informally, employees should put the grievance in writing setting out the nature of the grievance;
- where an employee raises a grievance during a disciplinary process the disciplinary process may be temporarily suspended in order to deal with the grievance. Where the grievance and disciplinary cases are related it may be appropriate to deal with both issues concurrently;
The Foreword to the Code suggests that both the employer and the employee should consider using an independent third party, including external mediators, to resolve disputes, but this is not set out in the Code itself.
A copy of the revised draft Code is available here
Finally, according to Michael Gibbons, author of the Gibbons Review which recommended the repeal of the statutory disciplinary and grievance procedures, the Government could eventually force employers to take staff complaints to independent mediation if the reforms due to be introduced in the Employment Act fail to reduce the number of complaints going to Tribunals. (Source: Personnel Today)