In a move that will have employers across the nation breathing a sigh of relief, new legislation has recently been passed, in the form of the Employment Act 2008, which will repeal the statutory disciplinary and grievance procedures. It is expected that the repeal will take effect from 6 April 2009.
The statutory procedures came into force in October 2004 and introduced mandatory three step processes to be followed in the workplace respectively to handle disciplinary and dismissal matters raised by an employer, and grievances raised by an employee. These processes each required written notification of the issue to the other side, a meeting between the two sides and (if appropriate) an appeal. Additionally, where the employer or the employee respectively failed to use the minimum statutory procedures, the Tribunal had the power to increase or decrease any award by between 10%-50%.
In March 2007, an independent review concluded that the statutory procedures, whilst right in principle, led to unforeseen consequences due to their mandatory nature. In particular, they led to disputes becoming formalised, and lawyers getting involved, at an earlier stage than had previously been the case, which was the opposite of what the legislation had in fact intended.
However, the repeal of the procedures does not mean that employers can safely cease to follow fair and appropriate disciplinary and grievance procedures. A reasonable procedure will remain a key element of a fair dismissal.
As to what is "reasonable", a new ACAS Code of Practice on Disciplinary and Grievance Procedures is expected to come into force on 6 April 2009. Although complying with the Code is not a mandatory legal requirement before a dismissal can be found to be fair, the new Employment Act 2008 will give tribunals the discretion to increase awards by up to 25% if an employer unreasonably fails to comply with the new ACAS Code of Practice, or reduce awards by up to 25% if an employee unreasonably fails to comply with it.
The code is currently in draft form but it is not anticipated that significant amendments will be made to it before it is implemented. Unsurprisingly, given well-understood principles of procedural fairness that had developed in case law over the years before the statutory procedures were introduced and on which those procedures were based, key elements of the Code of Practice reflect many of the principles contained in the statutory procedures:
- hold a meeting with the employee to discuss the grievance or the disciplinary matter
- give the employee the opportunity to be accompanied at any meetings
- decide on the appropriate action to be taken
- give the employee the right of appeal
- hold an appeal meeting if the employee appeals
Until such time as the new regime comes in, employers should take care to continue to follow the requirements of the statutory disciplinary and grievance procedures.