April saw the end of the statutory dispute resolution procedures and the start of the ACAS Code of Practice on Discipline & Grievance. Marivi Prescott reports on the implications for employers.
Sadly, however, it's not simply a case of "out with the old, in with the new" and employers need to be aware of the important transitional provisions which apply.
In summary, the statutory disciplinary and dismissal procedures (DDPs) continue to apply after 6th April 2009 where:
on or before 5th April 2009, the standard or modified DDP applied; and
on or before that date, the employer has either:
dismissed or taken relevant disciplinary action against the employee; or
sent a Step 1 letter or held a Step 2 meeting.
So, for example, if an employee was dismissed for gross misconduct on 2nd April 2009 and lodged an appeal on 7th April, the statutory DDP would continue to apply. Similarly if you started the disciplinary process with a Step 1 letter before 6th April 2009 the old regime would continue to apply to the whole process.
The statutory grievance procedures (GPs) continue to apply after 6th April 2009 in two sets of circumstances. These are:
(i) where the action that forms the basis of the employee's complaint occurred wholly before 6th April 2009;
(ii) where the action forming the basis of the grievance began on or before 5th April 2009 and continued beyond that date, but only if the employee presents a complaint to a tribunal based on that grievance on or before 4th July 2009, for most types of claim, or 4th October 2009 in the case of an equal payor redundancy pay claim.
For example, employee x was promoted on 1st April 2009, employee y was not and employee y lodged a grievance on 9th April 2009, the statutory grievance procedure would continue to apply. It is important to remember that where the statutory procedures do continue to apply, the associated 3-month extension for bringing a tribunal claim, the compensation adjustments (10-50%) and the automatic unfair dismissal provisions will also continue to apply.
Under the new regime, whilst a failure to comply with the new ACAS Code of Practice will not, of itself, result in a finding of automatic unfair dismissal, employment tribunals will be able to adjust any awards made in relevant cases by up to 25% for unreasonable failure to comply with the Code. The fact that different consequences flow from a failure to comply with either the old or new regime mean it is very important to understand which one applies when and the transitional provisions will mean that the statutory procedures will remain with for some time to come.
Finally, one note of caution in light of the current economic climate which is entailing redundancies in a number of organisations. Employers should bear in mind that whilst the new ACAS Code specifically states that It does not apply in cases of dismissal for redundancy (or non-renewal of a fixed term contract) it will still be necessary to follow a fair procedure, as the normal unfair dismissal rules will continue to apply.
In an individual redundancy scenario, for example, the process should include, in particular, providing written notification to the employee, in advance of a meeting, informing them they are at risk of redundancy, having ideally at least 2 individual consultation meetings and considering suitable alternative employment.
This article appeared in the August 09 edition of CableTalk.