Dispute Resolution

1
Dispute Resolution Disciplinary, Dismissal and
Grievances

2
Introduction a reminder of the basics

• Effective 1st October 2004
• All employers (no minimum number of staff)
• All employees but not workers (even though
  right to be accompanied applies to workers as
  well)
• All employees no qualifying period of service
• DDP disciplinary and dismissal procedures

3
Introduction a reminder of the basics

• As easy as 1,2,3 according to the DTI
• Put it in writing
• Meet and discuss
• Appeal
• www.dti.gov.uk/resolvingdisputes

4
Introduction a reminder of the basics

• Automatic unfair dismissal if non compliance
  one years qualifying requirement applies
• Compensation increased by 10 to 50 - but
  maximum of 55,000 still applies
• For unfair dismissal cases only, basic award
  increased to a minimum of 4 weeks (if employee
  has under 4 years service)

5
Where the procedures do not apply

• The procedures do not apply where
• The Employee is suspended on full pay
• The Employer is contemplating issuing a written
  or verbal warning, rather than a dismissal
• Dismissal is as a result of
• unofficial or unprotected industrial action
• where employment would be illegal
• sudden unforeseen closure of workplace

6
Where the procedures do apply

• The disciplinary and dismissal procedures apply
  in many situations in addition to disciplinary,
  conduct performance matters
• Failure to be successful in a probationary period
  (remember no qualifying period of service)
• Redundancy other than multiple redundancies of
  over 20 employees
• Retirement

7
Where the procedures do apply (contd)

• Demotion
• Business reorganisation, where there is
  termination and re-engagement, unless all
  employees in a category are terminated and
  re-engaged
• Non renewal of a fixed term contract

8
Probationers, short fixed term contract employees
retirees

• Probationers, employees with short fixed term
  contracts and retirees cannot bring a
  conventional unfair dismissal case
• The first 2 because less than a years service
• The latter because over retirement age
• So, are you in the clear as far as these
  categories are concerned?
• NO!

9
The Scope of the Dismissal and Disciplinary
Procedures

• Although most often discussed in the context of
  conventional unfair dismissal, Tribunals will
  examine if the DDP has been completed in cases
  brought under many other jurisdictions, and if
  not may increase any compensation by 10 to 50

10
The Scope of the Dismissal and Disciplinary
Procedures (contd)

• The list includes
• Automatic unfair dismissal allegations (neither a
  qualifying period nor upper age limit apply)
• Sex, race, disability, religious or sexual
  orientation discrimination
• Breach of employment contract
• Equal pay
• Breach of Working Time Regulations
• Detriment in relation to Trade Union activities

11
Getting it wrong

• The DTI guidance states that there is no need to
  follow DDP for compulsory retirement of employees
  over retirement age
• Wrong!
• Such an employee could bring any of the claims
  referred to on previous slide
• As could unsuccessful probationers or employees
  with short fixed term contracts who are not
  re-engaged

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Probationers, short fixed term contract employees
retirees

• Probably over-reaction to apply DDP to all such
  terminations
• But be aware that if there is any risk of a claim
  in an applicable jurisdiction, best to undertake
  DDP

13
Redundancies and Business Reorganisations

• DDP applies but in practice in redundancy
  exercises there will be correspondence meetings
  anyway, so compliance probable
• Remember appeals awkward in termination
  re-engagement exercises

14
The Procedures in Action

• In unfair dismissal claims, substantive fairness
  still required and normal rules apply
• Investigation
• Separation of roles
• Fair reason to dismiss
• Fair reasonable in all the circumstances
• Timing location of meetings must be reasonable

15
The Procedures in Action (contd)

• Each step must be undertaken without unreasonable
  delay
• Meetings must be conducted so that employee is
  able to explain his case
• Employer must actively tell the employee about
  right to appeal
• Appeals should be conducted by a more senior
  person

16
Outcomes scenarios

• An employee with over a years service is
  dismissed for medical incapability reasons. A
  comprehensive procedure is followed, with
  consultants reports etc, but the employer omits
  tell the employee that he has a right of appeal.
  The employee knows that anyway, and makes an
  unsuccessful appeal.

17
Outcomes scenarios (contd)

• The Tribunals decision Under normal rules, the
  dismissal is fair - failure to inform about
  appeal not enough to make it unfair.
• But DDP is defective so, automatic unfair
  dismissal. Reasonableness irrelevant.
• Calculation of award
• Basic award of 4 weeks minimum
• Normal compensatory award based
• on losses
• Increase compensatory
• award by 10 to 50

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Outcomes scenarios (contd)

• Employee dismissed for conduct reasons, based on
  single allegation of insubordination. Employer
  follows DDP to the letter. Tribunal decides
  dismissal was outside band of reasonable
  responses, so dismissal unfair. But, since DDP
  complied with, normal compensation calculation
  with no enhancement.

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Outcomes scenarios (contd)

• The company wants a senior director to be made
  redundant immediately going through a
  consultation exercise etc is not seen as
  feasible. You are asked to calculate what payment
  under a compromise agreement should be given, and
  you make a generous allowance, given that the
  employee will probably get another job soon. He
  is given the agreement, and his solicitor has now
  written to you claiming an extra 10 to 50
  award. Do you have to pay this?

20
Grievance Procedures

• A mirror image of the DDP
• Complaint in writing
• Meeting
• Appeal
• Most tribunal claims are barred unless the
  employee has lodged an internal grievance and
  waited for 28 days

21
Grievance Procedures

• The employee can bring a Tribunal claim after the
  28 days if the employer has not resolved the
  grievance to his/her satisfaction
• Assuming Tribunal accepts the claim, ie the 28
  day period has been complied with, any awards can
  be reduced by 10 to 50 if the employee has not
  complied with the procedures

22
Grievance Procedures

• Complex rules extend the period during which a
  Tribunal claim can be presented where there is a
  grievance being heard
•  

23
ACAS Code on Disciplinary Grievance Procedures

• The new version of the ACAS Code on Disciplinary
  and Grievance Procedures has been formally
  published by The Stationery Office.
• It has been updated to incorporate the statutory
  dismissal and grievance procedures which, with
  the ACAS Code, came into force on 1st October
  2004.
• http//www.acas.org.uk/publications/pdf/CP01.pdf
• (Adobe Acrobat required)

24
Role of Companion at Disciplinary Meetings

• Employment Relations Bill currently going though
  Parliament
• Likely to become law in 2005
• Deals mainly with various Trade Union matters
• And, the companions role at disciplinary
  meetings is clarified

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Role of Companion at Disciplinary Meetings (cont)

• The employer must permit the workers companion
  to address the hearing to
• Put the workers case
• Sum up that case
• Respond on the workers behalf to any view
  expressed at the hearing
• The companion is permitted to confer with the
  worker during the hearing

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Dispute Resolution Disciplinary, Dismissal and
Grievances

• Questions and Conclusion
• Harry Sherrard
• 44-1444-473344
• harry_at_harrysherrard.com