It is hard to believe that the “new” Statutory Disciplinary and Grievance Procedures (“the statutory procedures”) came into force almost three years ago. This article provides a timely reminder of the procedures and how they have operated in practice.
Why Change?
The Government’s aim in introducing the statutory procedures was to reduce the number of employment disputes that go to an Employment Tribunal. It was hoped that by forcing employees to raise many disputes internally, fewer disputes would arise. The principal objectives were to:
- Identify employee grievances at an early stage;
- Encourage employers and employees to discuss grievances and disputes within the workplace; and
- Promote effective alternative ways of reducing disputes.
The Procedures: A Reminder
When an employer proposes taking “relevant disciplinary action” in relation to an employee, the employer needs to send a letter inviting the employee to a meeting outlining the reasons for contemplating such action. After the meeting, a letter should be issued offering a right to appeal. An appeal hearing should be convened, if necessary.
The procedures apply in the event of “relevant disciplinary action” being contemplated, which includes most types of dismissals – including redundancy and when a fixed term contract comes to an end.
If the employee fails to comply with the procedures (for example, does not appeal) compensation that is awarded can be reduced. Where the employer fails to comply with the procedures (for example, where no letter is issued or no hearing convened), the dismissal may be automatically unfair and compensation could be increased.
The Statutory Grievance Procedure requires an employee to lodge a grievance with the employer before lodging a Claim. Time limits for raising claims are extended in some cases. The employer should convene a meeting and then issue a letter with the right to appeal. Again an appeal hearing should be convened, if necessary.
Tribunals have taken a broad view as to what amounts to a grievance, but an employee’s failure to lodge a grievance would result in the Tribunal having no power to deal with the claim – regardless of the merits. Compensation awarded following a successful claim can be adjusted if either party has failed to follow the relevant grievance procedures.
One common difficulty has been where an employer fails to appreciate that a letter of resignation can amount to a grievance. This has resulted in many employers being penalised.
There are specific provisions that disapply the procedures and allow for a modified procedure in certain cases. These rules are complex.
The Position to Date
Despite the aim of reducing the amount of employee related litigation, it is accepted generally that the procedures have had the opposite effect. Employment Tribunals have been inundated with litigation about the procedures and are often called upon to decide whether a grievance had been lodged and whether compensation should be increased or decreased because of alleged failures by the parties. This results often in the actual complaints themselves not being dealt with for some time, thereby delaying a resolution of the complaint and increasing costs.
The Review
In March 2007, the Department for Business Enterprise & Regulatory Reform (DBERR) published an independent review into the procedures. The principal recommendation was that the procedures be abandoned. The review concluded that the original objectives were being frustrated, that the procedures actively discouraged the early resolution of disputes and placed unreasonable administrative burdens and costs on the parties.
The review recommends that the Government:
- Produce clear, simple and non-prescriptive guidelines on grievance and discipline issues and provide incentives to comply;
- Consider a new and simpler process to allow many monetary disputes to be settled without the need for a full Tribunal Hearing;
- Produce quality advice at an early stage to the parties, such as by way of telephone or internet resources and by providing a free early dispute resolution service; and
- Offer the parties incentives to resolve disputes sooner, such as by allowing Tribunals to take account of this when making orders.
The review also recommended that the fixed timetable in which ACAS had to conciliate be abolished and that ACAS be available to assist parties throughout the duration of a dispute. Further details can be found on the DBERR’s web site (www.berr.gov.uk).
In the meantime…Employers should ensure that internal disciplinary and grievance procedures are up to date and that all staff, particularly management, are trained in handling such matters. Given the complexity of the procedures and the ongoing (and changing) interpretation of the complex rules, specialist advice should be sought when dealing with such issues.
Contact
David Hoey
(Information posted in July 2006 and may not have been updated at time of reading.)