Dispute Resolution Procedure Changes

Replacing the Dispute Resolution Procedures; What It Means For You.

The compulsory and despised Dispute Resolution Procedures, which were introduced by the Employment Act 2002 and came into force in 2004, were finally removed on 6 April 2009.

The main guidance of how to manage disciplinary and grievance proceedings is now contained in the new ACAS Code of Practice 1; Disciplinary and Grievance Procedures. This Code is now enshrined in law, from 6 April 2009, and if either party fails to follow it they may be subject to an increase or decrease of no more than 25% of any award made. This differs from the current sanction of up to 50%.

In terms of managing a disciplinary you need to follow a reasonable process, described in the Code as the following;

• Establish the facts of each case – which will necessitate some form of investigation.
• Inform the employee, in writing, of the problem.
• Hold a meeting with the employee without unreasonable delay, providing 48 hours notice.
• Provide the employee with the right to be accompanied.
• Decide upon appropriate action and ensure your response is proportionate to the reasons being disciplined for and communicate that in writing.
• Provide an opportunity to appeal.

Government guidance has explained that if your policies and procedures are compliant with the current procedures, they will be compliant with the new procedures. However, practice and case law may change this position. The main difference is that failure to follow a reasonable procedure will not make the dismissal automatically unfair but breaching it may, nonetheless, make the dismissal unfair.

If you do not follow the guidance in the Code of Practice, an Employment Tribunal will look at the resources available to you to establish how reasonable your failure is. So the larger an organisation you are, the less likely breaches of the Code will be seen to be reasonable.

While the Code of Practice applies to ALL disciplinary proceedings, it does not apply to redundancies or fixed-term contracts. However, you need to be wary of not taking a best practice approach in case there is an issue of discrimination. It is best to always take advice from an organisation such as Northgate Arinso Employer Services in order to ensure you are making the best decision for your business.

There is no major difference to the grievance process apart from the removal of the modified two-step procedure. This provides an interesting difference from the current process; there is no mention of grievances raised by ex-employees. However, depending upon the nature of the grievance it may be best to make a decision on a case by case basis. Again, in these circumstances it is best to take expert employment law advice from Northgate Arinso Employer Services, who can advise whether such grievances can be safely ignored or not.

There is also no provision for collective grievances. For those employers who do not have policies on how to deal with collective grievances you should be looking at such a policy. Northgate Arinso Employer Services is experienced in helping employers draft such policies and advising on their implementation. It is not possible to ignore such grievances, because to do so is likely to be deemed to be unreasonable under the code and may result in an uplift of 25% of any award made and in a collective grievance made by several employees, it could be extremely expensive.

Obviously, there is a period of overlap where the existing procedures will still have to be followed even after 6 April 2009. There will be disputes which are in existence, but not yet raised at Tribunal and disputes where a claim has been made but not yet reached the Tribunal.

The important point is the trigger event. For a disciplinary it is fairly straight forward – what was the date of the letter inviting the employee to the disciplinary hearing (if there was one); or the date of the meeting to discuss the issues (if there was one); or the date of dismissal?

If the first of these occurred after 6 April 2009 then the new procedure should be followed. If the first occurred before 6 April 2009 then old procedure should be followed.

Grievances are a little more complex – it all depends upon the date of the action which the employee is complaining about.

If it is after 6 April 2009 then the new procedure should be followed. However, if it is before 6 April 2009 or a series of continuing acts that initially occurred before 6 April 2009 and have carried on then the previous process should be followed. As you can see, you will need to ensure your investigations are thorough and you have a good understanding of when events occurred. To not do so could be a costly mistake as you may be subject to an uplift of 50% rather than 25%.

This could be an ongoing dual process but the government have realised this and legislated for it. The grievance or Employment Tribunal claim must be submitted before 4 July 2009 where the time limit on raising a claim is three months (eg: unfair dismissal) and 4 October 2009 where the time limit is six months (eg: equal pay). So the 4th October 2009 is the final date with regard to the Dispute Resolution Procedures.

As you can see, this looks like it could be quite complex during the transitional period, which is why an organisation such as Northgate Arinso Employer Services can be invaluable in guiding you through it.