The Regulations bringing parts of the Employment Act 2008 into force on 6th April 2009 also introduce transitional arrangements for the removal of the statutory dispute resolution procedures. These regulations provide for one set of arrangements for dismissal and disciplinary actions, and another for grievances. These changes will be important for all HR managers and line managers. In particular, the transitional arrangements relating to grievances may catch many employers out in the year ahead.
Dismissal and disciplinary action - The current statutory procedures will continue to apply where the dismissal or the first step of a dismissal or disciplinary action has taken place by 6 April 2009. In practice this rule will only be relevant if the dismissal is litigated – whether or not the statutory procedures apply should not affect how you deal with a dismissal since the new Acas Code contains the same three step procedure. We can foresee arguments about whether the statutory procedures apply in these circumstances (eg where an “at risk” redundancy meeting which would not normally be deemed to be a step 2 meeting takes place before 6th April but no other steps are taken) so to avoid any uncertainty, the best course would be to follow the current statutory procedures anyway, or where practicable, delay any steps until after 6th April. Note that although from 6th April the statutory procedures will not apply, a dismissal where they are not followed will not be automatically unfair but may, of course, still be unfair for failure to follow a fair procedure; any award may be subject to the 25% uplift if the Acas code has not been followed.
Grievances – The statutory procedures will continue to apply to any grievance where the date of the action about which the employee complains takes place before 6th April 2009. Hence, where an employee resigns claiming constructive dismissal after this date, the statutory grievance procedure will still apply if the events which gave rise to the employee’s reason for resignation occurred before this date. This will mean the employee is debarred from bringing the claim if he or she fails to raise a written grievance. It could also mean that where the employer fails to recognize that the statutory procedures still apply and fails to comply with them, the dismissal will be automatically unfair (and liable to the 50% uplift). This risk will be particularly relevant in “last straw” constructive dismissal claims where the employee alleges a series of breaches going back over a period of time. Employers will have to be on their guard for these types of claims for some time after 6th April this year so the best policy will be to ensure that all grievances are dealt with in accordance with the new Acas Code.