From 6 April 2009 the statutory dispute resolution procedures (i.e. the procedures dealing with disciplinary hearings, dismissals and grievances) will be abolished. They will be replaced by a new power for employment tribunals to increase or reduce tribunal awards by up to 25 per cent for failure to follow the new ACAS Code of Practice on Discipline and Grievance (the Code).
The Code is designed to allow employer and employees a more flexible approach to disciplinary and grievance issues by setting out the principles of what both employer and employee should do to achieve a reasonable standard of behaviour. Unlike the 2004 Code, it does not require employers and employees to follow mandatory steps in the process.
Employment tribunals will take the Code into account when considering relevant cases. The tribunal will consider whether a failure to follow the Code was unreasonable, taking into account factors such as size, resources, etc. If a tribunal decides that a failure, by either the employer or the employee, to follow the code as unreasonable it will have the power to adjust any award up or down by up to 25%
Key points to Note:
There will no longer be an obligation to follow mandatory dispute resolution procedure. This means that a dismissal will not be automatically unfair where there has been a failure to do so.
The Code sets down minimum standards for dealing with disciplinary and grievance issues. Employers with greater resources will be expected to meet higher standards when conducting disciplinaries and grievances.
The Code and guidance are not legally binding, so a failure to follow them will not have legal sanctions.
If a tribunal considers that an employer or employee has unreasonably failed to follow the Code, it may adjust the compensation awarded by up to 25%.
Employees will not have to bring a grievance before submitting a tribunal claim. Parties are urged to resolve disputes informally at the earliest possible opportunity. Where problems are not resolved using internal procedures, employers should consider using an independent third party to help (e.g. mediation or pre-claim conciliation).
The statutory procedures will be repealed from 6 April 2009 this means there will be a transition period during which they will work in parallel with the new Code regime.
The date of a ‘trigger’ event will be used to decide whether the new or old regime will apply:
- If the trigger date is on or after the 6 April 2009, the new regime will apply.
- If the trigger date is on or before the 5 April 2009, the old regime will apply.
- Dismissals and Disciplinary issues
The date of the trigger event will be the date when the employer has started action against the employee. This may be the date when the employee received a letter explaining disciplinary action is being considered or , in the absence of a letter, a meeting at which the matter was raised. If neither of these steps were taken then the trigger would be the date on which the disciplinary action, including dismissal, was taken.
In the case of a grievance issue, the trigger date will be the date of the action about which the employee complains( even if the action continues beyond this date).
If the action, about which the employee complains, begins on or before the 5 April 2009 and continues beyond that date, the pre 6 April 2009 regime will still apply, subject to final cut off dates as follows:
The employee makes a claim to an employment tribunal in relation to that grievance on or before the 4 July 2009 (e.g. for discrimination cases) or in the case of an equal pay or redundancy claim, 4 October 2009.