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NEW ERA FOR GRIEVANCE AND DISCIPLINE?

• Richard Arthur
• Thompsons Solicitors
• 15 October 2008

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The 2004 Procedures

• 3 step procedure which must be followed by an
  employer considering dismissing an employee, or
  by an employee considering bringing an ET claim
• Written notification, meeting, appeal
• Bar on commencing ET claim unless grievance filed
  and 28 days expires
• Extension of time limits
• Adjustments to compensation
• Polkey reversal.

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• The Gibbons Review
• although there is some evidence that the
  procedures have encouraged more early resolution
  of disputes, they have also created a high
  administrative burden and had significant
  unintended consequences which outweighed the
  benefits.

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• Government Consultation Response
• 76 of respondents favoured repeal
• Restoration of Polkey
• Short, non-prescriptive ACAS Code of Practice
• Comprehensive accompanying non-statutory ACAS
  guidance
• Simple claims to be determined without hearing
• Removal of fixed conciliation periods
• Simplification of ET forms.

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• Employment Bill
• Repeal of statutory dispute resolution
  procedures
• Reversal of the Polkey reversal
• Adjustment of awards by up to 25
• Determination of proceedings without hearing if
  all parties consent
• Duty to conciliate, repeal of fixed conciliation
  periods
• Compensation for financial loss for unlawful
  deductions from wages/redundancy payment claims.

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Adjustment of awards

• If
• a Relevant Code of Practice applies and
• the employer/employee has failed to comply with
  that Code of Practice and
• that failure was unreasonable
• the ET may, if it considers it just and equitable
  to do so, increase/reduce any award by no more
  than 25.

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• Draft ACAS Code of Practice
• Short and principles based
• A failure to follow the Code does not, in
  itself, make a person or organisation liable to
  proceedings
• Employers and employees should do all that they
  can to resolve disciplinary and grievance issues
  in the workplace
• Recourse to an Employment Tribunal should only
  be a last resort

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• ACAS Code Discipline
• Establish the facts
• Inform the employee of the problem
• Hold a meeting
• Allow the employee to be accompanied
• Decide on appropriate action
• Provide an opportunity to appeal
• Special cases trade union officials.

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• ACAS Code Grievances
• Let the employer know the nature of the
  grievance
• Hold a meeting
• Allow the employee to be accompanied
• Decide on appropriate action
• Allow the employee to take further if not
  resolved
• Special cases bullying, harassment and
  whistleblowing.

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• Sound familiar?

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• ACAS Code of Practice Issues
• Apparently relevant to liability and compensation
  adjustment
• Exactly when does the 25 uplift/reduction apply
  (eg right of accompaniment)?
• Reintroduction of 2004 procedures by the back
  door?
• What obligations are placed on employees in
  relation to grievances?

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• More Detailed ACAS Guidance
• Has no status at an Employment Tribunal
• Expands upon the Code of Practice.

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• Implementation
• Projected April 2009
• Complex transitional provisions likely
• Trigger for application of new procedures
  likely to be whether the date of the dismissal or
  disciplinary action/the event giving rise to the
  grievance is before 1 April 2009

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• Conclusions
• Likely to be a throughput period of al least a
  year as cases under the 2004 regime work their
  way through
• Transitional provisions while the two regimes
  work in parallel
• Certain aspects of the case law on the 2004
  procedures may survive-eg what is a grievance?
• We are not returning to the pre-2004 world
• There will be opportunities for
  adjustments/reductions
• More procedures will need to be
  followed-grievances, meetings and appeals
• It remains to be seen just how new the new
  world will be.

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