Decisions on the Dismissal Procedure
There have been relatively few cases dealing with the disciplinary and dismissal procedures, but mostly, these cases are focussed on the question of what information the employer needs to provide to the employee prior to the formal disciplinary hearing. It has been held, for example, in the context of a redundancy procedure, that before the formal meeting, the employee must be told by the employer why there is a redundancy situation, on what basis selection for redundancy is taking place and how the employee has been scored in relation to the selection criteria.
Decisions on the Grievance Procedures
There have been many cases addressing compliance with the statutory grievance procedures, probably because the sanction for an employee failing to lodge a grievance is so severe. For example, a Tribunal claim is barred where the employee has not “set out the complaint in writing and sent it to the employer”. In such situations, Tribunals will conclude, not lightly, that there has been a failure to put the grievance in writing.
Therefore, Tribunals have held that valid grievances can be lodged in the following circumstances:
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Where the grievance does not contain the word “grievance”;
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Where it does not follow any internal grievance procedure which is laid down;
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Where it is sent by the employee’s solicitors, not by the employee;
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Where the tone of the grievance is aggressive rather than conciliatory;
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Where the grievance is sent on a “without prejudice” basis;
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Where the grievance is contained in a resignation letter; and
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Where the grievance is contained in a letter demanding proposals from the employer to avoid potential litigation.
The requirement to “put the complaint in writing” was stretched almost to breaking point in one case where a Tribunal decided that a grievance had been validly lodged in writing where the employee had attended a meeting with an HR Manager, made the complaint verbally, but saw the HR Manager write down the details of the complaint!
Tribunals have also stressed that grievances need not contain any particular technical or legalistic form of words and, at least in the initial complaint, need not go into detail about the grievance. It is sufficient if, in general terms, the complaint is made.
As a result of the wide interpretation of “grievance”, employers who do not follow a formal grievance procedure when receiving a complaint from an employee run the risk of increased compensation being awarded if the matter comes to an Employment Tribunal.
Reform
The procedures have been subject to universal criticism. It is felt generally that the procedures simply have not achieved their purpose and have increased the amount of legal arguments. As a result, and following consultation, the Government’s position is that the procedures should be abolished in their entirety. Instead, the proposed Employment Act 2008 will replace the procedures with a “Code of Practice” with which employers and employees will be expected to comply, with a view to resolving disputes.
It appears that failure to comply with a Code of Practice relating to dismissal will not make a dismissal automatically unfair and any failure by an employee to follow a Code of Practice in relation to a grievance will not bar the employee from presenting a claim. Awards of compensation will still be subject to adjustment in the event that one party has breached the Code of Practice and adjustment will be limited to a maximum 25%, rather than the current 50%.
Further detail is expected when the Code of Practice is produced and it may well be that the detail turns out to be similar to the current statutory dispute resolution procedures. Nevertheless, by removing the draconian penalty of barring an employee from pursuing an Employment Tribunal complaint or having a dismissal declared automatically unfair it is hoped that the new regime will lead to Tribunals spending far less time debating the applicability of the procedures and whether parties have complied with them. This will enable the Tribunals to move more rapidly to the matters at the core of the dispute, i.e. whether the employee should, on the merits, succeed in the claim which is being advanced.
Employers Must Continue to Comply!
It is important for employers to remember that the new regime will not be in place for some time yet, possibly for another 15 months or more. Therefore employers must continue to comply with the statutory procedures, follow the required procedure in relation to any proposed dismissal and deal properly with any written grievance received from an employee relating to their employment. There is no doubt that the current regime will continue to produce a significant volume of litigation. Employers should do what they can to avoid coming out on the wrong side of that litigation.
(Information posted in February 2008 and may not have been updated at time of reading).