1 Apr 2009
ON APRIL 6, the new Employment Act brings in changes for employers regarding how they should handle disciplinary action and grievances. It also features an amendment to financial penalties if they do not follow correct procedures.
Dispute resolution, which came into force in October 2004, was introduced to resolve disputes with employees more effectively. The idea was that early settlement brings fewer Employment Tribunal claims. The result was a complex piece of legislation, concerning when, and how, disciplinary dismissal and grievance procedures should be carried out.
After four years and Government consultation, the dispute resolution procedures have been repealed by the Employment Act 2008. The new law, as well as a new ACAS Code of Practice, take effect from April 6.
The code is a simplified version of the old one. Employers still need to:
• write to the employee setting out the reasons for the disciplinary meeting;
• give the employee a right to be accompanied by a work colleague or a trade union official;
• confirm the reasons for the disciplinary warning in writing; and
• give the employee a right of appeal against the decision.
The code advises employers to take prompt action when dealing with issues of conduct, and to have a consistent approach when disciplining members of staff.
One change that will affect employers is that they will need to hold a more formal investigation process to establish the facts and gather supporting evidence, before having a disciplinary meeting for a conduct issue. The code, for the first time, states: “In misconduct cases, where practicable, different people should carry out the investigation and the disciplinary meeting.”
To a certain extent, this will depend on the size and resources of the firm. Warning letters after a disciplinary meeting should set out the nature of the misconduct or poor performance, as well as the change in behaviour or improvement in performance that is required.
The use of the disciplinary procedure when disciplining or dismissing staff can help an employer demonstrate to an Employment Tribunal that he or she has been reasonable in all the circumstances when defending an unfair dismissal claim. Hearing a grievance raised by an employee at a formal meeting can also help prevent issues such as ongoing discrimination, and prevent claims by employees for deductions of pay or holiday entitlement, where there have been misunderstandings.
If an employer faces a tribunal claim and the tribunal considers that it was unreasonable that the employer had not followed the ACAS Code of Practice, it can increase any award by 25 per cent. If the employee did not comply with the code (for example, by not attending disciplinary meetings), the award made could be decreased by 25 per cent (both currently 50 per cent).
As a result of the simplified procedures, there will no longer be a statutory dismissal procedure, so this will shorten the procedure for dismissing staff by reason of redundancy slightly, and make ending a fixed-term contract a little easier. Some good news, then, but employers should still seek advice before disciplining or dismissing staff.
We cannot forget the statutory dismissal and disciplinary procedures completely on April 6. The repeal of the procedures will only apply to Great Britain, and not Northern Ireland. If the employer’s letter, setting out the circumstances that led the employer to contemplate dismissing or disciplining the employee, was sent to the employee on or before April 5, the statutory dismissal and disciplinary procedures and “old law” still apply.
Grievances raised by an employee relating to an action that occurred wholly before April 6 will follow the current statutory grievance procedure. If the employee raises a grievance about an action that began on or before April 5 and continues beyond that date, the statutory grievance procedure and the “old law” will also apply. There are, however, final cut off dates. The employee has to write his or her grievance letter to the employer or present a complaint to the tribunal before July 4 for the “old law” to apply. This is for potential claims with a three-month time limit, such as discrimination or unfair dismissal. For potential claims with a six-month time limit, such as redundancy pay or equal pay, the cut off date is October 4.