On 6 April 2009 the Employment Act 2008 (the 2008 Act) introduced a new regime affecting the vast majority of employment tribunal claims.
At the same time, it repealed the statutory dismissal, disciplinary and grievance procedures introduced only a few years ago in 2002, which had resulted in much case law and difficulties for both employers and employees.
The 2008 Act requires employers and employees to comply with the new ACAS Code of Practice on Disciplinary and Grievance Procedures (the Code). The actions of both employers and employees are now judged in line with the Code by employment tribunals, though the Code is not legally binding and a failure to follow its provisions does not automatically result in a penalty. However, if a tribunal considers that there has been an unreasonable failure on the part of the employer or employee to comply with the Code, the amount of compensation awarded can be increased or reduced by up to 25%.
What Will Employers Be Obliged to Do to Ensure They Do Not Fall Foul of the New Provisions?
An important point to note before looking in detail at what an employer must do in relation to disciplinary and grievance issues is that the Code states that employees, and, where appropriate, their representatives, should be involved in the development of disciplinary and grievance rules and procedures. It is not clear from the Code what employers must do to satisfy this requirement and what level of involvement would suffice. It is also unclear whether this places an obligation on employers with existing disciplinary and grievance procedures to go back to employees and/or their representatives to consult with them. It has been left to the employment tribunals to work out the detail of this provision. In the meantime, employees should err on the side of caution – there may be up to a 25% uplift in any award for failure to adequately consult with employees.
Points to note concerning grievance procedures:
- The Code encourages grievances to be dealt with informally initially. It also says that grievances should be raised without unreasonable delay.
- If it is not possible to resolve the issue informally, the employee should put the grievance in writing, setting out the nature of the grievance. A grievance should be raised with a manager who is not the subject of the grievance.
- The employer should arrange for a meeting to be held, at which the employee can explain the grievance, without unreasonable delay. The employee has the right to be accompanied at this meeting by a colleague or a trade union representative or a trade union official and it is good practice to inform the employee of this right.
- The employer should communicate its decision following the meeting without unreasonable delay and the employee should be given the opportunity to appeal the decision.
- There is no longer an obligation on an employee wishing to bring a tribunal claim to have raised a formal grievance with their employer and to have waited 28 days before making any application to the tribunal.
- The time limit for most applications to employment tribunals is three months, so employers should endeavour to deal with grievances well within that three month period in order to avoid the situation where employees send pre-emptive claims to tribunals, unnecessarily escalating disputes.
Points to note concerning disciplinary procedures:
- The Code sets out the well-established case law principles in relation to carrying out disciplinary investigations, and emphasises the importance of carrying out an investigation without delay. The employer should consider that sometimes it is necessary to hold an investigation meeting with the parties affected. In cases of serious misconduct it may be necessary for a separate person from the person carrying out the disciplinary process to carry out a formal investigation.
- It should be remembered that if no investigation is carried out the employee could get up to a 25% uplift on any compensation awarded by a tribunal.
- If, following any investigation, it is decided that there is a disciplinary case for the employee to answer, the employee should be informed of this in writing in sufficient detail to allow the employee to properly prepare their answer. Additional allegations cannot be raised at the disciplinary hearing if no evidence has been provided to the employee in advance. If new evidence does come to light at a later stage, then the hearing should be adjourned to allow the employee to review the new evidence.
- The meeting should be held without unreasonable delay, whilst allowing the employee enough time to prepare an answer. The employer should take the employee through the evidence at the beginning of the meeting, before the employee has to answer the allegations.
- The employee should then be given the opportunity to answer the allegations and to ask any questions. The employee may also present evidence at this meeting.
- Both sides have the right to call witnesses at the disciplinary meeting, and both sides have the right to raise any additional points that arise out of any information provided by the witnesses.
- The employee has the right to be accompanied at the meeting, as before.
- The employee has the right to appeal against any disciplinary action. No stages of the disciplinary procedure prior to dismissal are excluded, so it seems that the employee has the right to appeal at every stage of the process.
Points to Note
- The Code does not apply to redundancy dismissals, but employers should not be misled by this and a fair procedure should still be followed to avoid a claim for unfair dismissal.
- If an employee is subject to disciplinary proceedings and they lodge a grievance against the manager carrying out the proceedings, the Code says that the disciplinary proceedings can be adjourned to allow the employer to deal with the grievance, or alternatively the two proceedings can be run in tandem. It seems likely that under the Code, grievances would still have to be dealt with even if they addressed the same substantive issues as the disciplinary proceedings.
- It is important to remember that the old procedures must still be followed in disciplinary and grievance cases started before 6 April 2009.
The 2008 Act has repealed the statutory dismissal, disciplinary and grievance procedures introduced only a few years ago in 2002, but which had resulted in much case law and difficulties for both employers and employees.
In light of these changes employers would be advised to do the following:
- Review the rest of their disciplinary and grievance procedures to ensure that they do not fall foul of the new Code.
- Provide a clear statement of what acts are likely to constitute gross misconduct. This is not already contained in an employer's disciplinary procedure then it would be good practice for the employer to amend their procedure to include relevant examples.
- Receive advice on what they should do/try to do to meet their consultation obligations.
- Offer training on their disciplinary and grievance procedures to their employees and managers. A failure to do this could result in a 25% uplift in any compensation award.