The statutory Dispute Resolution Procedures are on their last legs. Earlier this month the Employment Act 2008 received Royal Assent, which means that from 6 April 2009 the parties will no longer have to tie themselves in knots over the mandatory three step disciplinary and grievance procedures.
The statutory procedures are to be replaced by a “lighter touch” regime based around a new, much shorter, Acas Code of Practice. The final version of the Code was approved earlier this month and will also come into force on 6 April. The Code itself is very short (it only runs to ten pages) and does not contain anything controversial. A failure to follow the Code will not by itself make employers liable to proceedings. Tribunals will however have the power to adjust awards upwards by up to 25% if employers have acted unreasonably in not following the principles set out in it, and downwards by the same amount if the failure was that of the employee. The current minimum 10% adjustment will be abolished.
Acas has also issued some 70 pages of non-statutory guidance (currently in draft form), which contains more comprehensive advice for employers dealing with disciplinary and grievance situations. Tribunals will not be required to have regard to the guidance when considering complaints, but some have expressed concern that this could happen nonetheless, especially bearing in mind the lack of detail in the new Code.
In theory the repeal of the statutory procedures should not have significant implications for employers in terms of how they handle disciplinary and grievance issues on a daily basis. In the case of misconduct, for example, they will still be expected to write to the employee setting out the allegations against him, to invite him to attend a disciplinary hearing and to offer him the right of appeal. The good news is that the failure to comply with one of these procedural steps will no longer render a dismissal automatically unfair – although it could of course still have implications for the fairness of the dismissal and for the level of any compensation awarded.
Employers may wish to familiarise themselves with the new Acas Code and the non-statutory guidance – we understand that the final version of the guidance should be available in early December. They should also review their disciplinary and grievance procedures to ensure that they are consistent with the principles set out in the Code. To the extent that employers replaced their own procedures with the statutory procedures, these should be amended in advance of April.
Managers conducting disciplinary and grievance matters should be made aware of the new legal position. It would make sense for them to read the new Acas Code and the accompanying guidance to ensure they act in accordance with the principles laid down.
It would be nice to think that the repeal of the statutory procedures will achieve its aim of less litigation – it is however inevitable that there will be case law over the new provisions. Hopefully, however, it will be on nothing like the scale we have seen with the statutory procedures.
We have set out an “At a glance” table summarising the changes.