First the good news
In response to growing criticism of the way the statutory dispute resolution procedures are working, last year the Government appointed Michael Gibbons to lead a review of the procedures. His report, which was published in March 2007, recommended their total abolition. In their place he suggested a number of measures, including better guidance on how to resolve employment disputes, more streamlined employment tribunal procedures and greater use of costs sanctions.
It is thought likely that the Government will bring forward proposals to replace the statutory procedures as this will be a popular step for both sides of industry. But there are still a number of complex issues to resolve, so they are likely to be with us for a while yet.
Both the disciplinary and grievance procedures say that the employer must provide a right of appeal, normally by way of a face to face meeting. But there are no requirements about the documents an employee must submit in support of an appeal and no time limits are stipulated, other than the general requirement that every step in the statutory procedures must be taken without unreasonable delay.
As a number of recent cases have illustrated, this means that employers will be in breach of the procedures if they make hearing an appeal conditional on the employee submitting grounds for the appeal, or appealing within a set time limit. Employers will also be in breach if they impose a greater penalty on appeal, even if the internal procedure allows this: if a greater penalty is to be imposed the only safe solution would be to restart the statutory disciplinary procedure at step one.
Can you count?
This mismatch between the statutory procedures and the employer’s own internal procedures is not the only source of confusion. Another common difficulty is working out whether the employee is entitled to bring a claim at all. This means working out not only whether a statutory grievance has been submitted, but whether the 28 day waiting period has passed.
There has even been a case at the Employment Appeal Tribunal about how this 28 day period is calculated. The answer is that 28 clear days must elapse between submitting the grievance and issuing proceedings. So if a grievance is submitted on a Monday, proceedings cannot be started until the Tuesday four and a bit weeks later.
The dividing line between the grievance and the disciplinary procedures has also been a source of confusion. The basic rule is that the disciplinary procedures apply where the grievance is that the employer has dismissed, or contemplated dismissing the employee. Clearly, if the grievance procedures do not apply, then the employee does not need to lodge a grievance before issuing proceedings. Because of the way dismissal is defined for these purposes, it is clear that employees wishing to bring constructive unfair dismissal claims must still lodge a grievance. But what if they want to bring a discrimination claim based on the fact of dismissal?
Recent cases have made it clear that where the discrimination claim (or a claim in any other jurisdiction) is based on the fact of dismissal (or threat of dismissal) then there is no need to bring a grievance before issuing proceedings.