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Nikki Duncan gives advice on managing grievance and disciplinary issues
The Employment Act 2002 introduced fundamental and radical changes to the law relating to managing grievance and disciplinary issues in the workplace. The Department of Trade and Industry (DTI) produced the Employment Act 2002 (Dispute Resolution) Regulations 2004, which implement these changes. The regulations came into force on 1 October 2004.
What do the regulations mean?
The regulations introduce statutory minimum internal disciplinary and grievance procedures. Sanctions for breaching them are harsh. For example, breach of statutory disciplinary procedures means the dismissal is automatically ‘unfair'. It will also result in employment tribunal compensation being increased by between 10 and 50%.
The standard disciplinary procedure means:
the employer must send a letter to the employee setting out the nature of the conduct, capability or other circumstances, which have led the employer to contemplate dismissing them or taking disciplinary action. The employer must also include information on the basis of the complaint
the employer must then invite the employee to a meeting and, following the meeting, inform the employee about any decision that has been made. The employee must be offered the right to appeal
in instances where the employee appeals, the employer must arrange a further meeting held by a more senior manager, where possible.
Following the meeting the employer must inform the employee of the final decision.
There is also a modified procedure, which may only be used when certain conditions apply. Until case law has clarified exactly when the right conditions exist, employers will reduce their risk of a finding of automatic unfair dismissal by using the standard procedure only.
In the same spirit, significant changes to the Employment Tribunals' Rules of Procedure were implemented on 1 October 2004. Among other things, a fixed period was introduced for parties involved in an employment tribunal claim to reach a conciliated settlement via conciliation service Acas. The government's clear aim is to ensure disputes are settled without recourse to the overburdened employment tribunal system.
What if the employer doesn't follow the statutory procedure?
If employers dismiss staff without complying with the statutory procedure, the dismissal will be automatically unfair. However, tribunals are able to disregard internal procedural failures by an employer, provided that the employer can show that a dismissal would still have resulted if the internal procedure had been followed.
To give the statutory procedures some punch, tribunals have the power to increase compensatory awards by up to 50% where the employer has failed to follow the minimum standards.
What about procedures dealing with grievances?
A grievance is defined in the regulations as "a complaint by an employee about an action, which his employer has taken or is contemplating taking in relation to him". The grievance procedure applies to constructive dismissal situations.
The Employment Tribunal Rules of Procedure prevent an employee from bringing a claim where they have failed to raise the grievance in writing and waited at least 28 days thereafter.
It is hoped that this 28-day period will enable a compromise to be reached via the grievance procedure before tribunal proceedings are issued.
What information about procedures should an employer provide?
All employers are now required to provide staff with details of disciplinary and grievance procedures.
Where an employee brings a claim before a tribunal and it becomes apparent that the employer has failed to give the worker a statement of employment particulars (or details of any change), the tribunal can award the employee two or four weeks' pay, even if it makes no other award to the employee.
What should employers do?
Employers should ensure their disciplinary and grievance procedures are fully up to date and incorporate the minimum statutory procedures. Also, employers should be aware of and implement current best practice when dealing with grievance and disciplinary issues. The DTI's guidance on the new regulations and particularly, the updated Acas Code of Practice provide vital advice and practical guidance.
What does the Acas Code of Practice contain?
Guidance on disciplinary practice and procedures
Guidance on grievance procedures
Guidance on a worker's right to be accompanied.
In addition, the annexes to the code contain summaries of the standard and modified procedures and the rules on deemed compliance and exemptions.
What's in the guidance on disciplinary practice and procedures?
Section one of the code contains information and guidance on the following:
The purpose of disciplinary rules and procedures
Dealing with disciplinary issues in the workplace
What happens when a grievance is raised during a disciplinary case
Dealing with gross misconduct
Dealing with absence from work
Dealing with special situations
Drawing up disciplinary rules and procedures.
What's in the guidance on grievance procedures?
Section two provides information and guidance on the following:
The purpose of grievance procedures
Dealing with grievances in the workplace
Raising a grievance
Drawing up grievance procedures.
What about a worker's right to be accompanied at disciplinary hearings?
The code's definition of a disciplinary hearing excludes informal interviews and counselling sessions, which do not result in formal warnings or other action. If it becomes clear during an investigative interview that formal disciplinary action may be needed, the interview should be terminated and a formal hearing convened.
What types of grievance are covered?
Although the code gives some indication of what constitutes a grievance hearing, it warns, "ultimately, only the courts can decide". However, the code makes it clear that a union will not be able to muscle in on an individual's request for a pay rise or application for upgrading or promotion unless there is a specific contractual or equality issue involved.
It also suggests that minor disputes - such as failure to provide car parking facilities, or day-to-day friction between fellow workers - will be excluded. The right to be accompanied at a grievance hearing will only apply where the matter in question is one of a "legal duty arising from statute or common law".
Who can accompany?
A companion can only attend in a union capacity if they are either a full-time official, or certified by their union as having the necessary experience or training to perform such a role.
Workers are free to choose a companion from any union, although the code recommends that where there is a recognised trade union, it would be good practice for the union official to be from that union.
Fellow workers may also act as companions. Again, this can be a ‘worker' in the widest sense of the word.
Union officials (whether lay or full-time) and fellow workers also have the right to refuse to accompany someone. If they accept, they have the right to a reasonable amount of paid time off to participate and prepare for hearings.
The request for a companion must be ‘reasonable', but the code emphasises that only clear-cut reasons, such as conflicts of interest, or a colleague's attendance from a "geographically remote location rather than someone suitably qualified on site", are likely to be strong enough grounds for resisting a particular choice of companion.
The companion has the right to address the hearing in order to put the worker's case, sum up and respond on the worker's behalf to any view expressed at the hearing. Beyond that it will be for the employer to decide the scope of their involvement. However, their role is important, and they should probably be allowed to ask questions and take reasonable time to confer privately with the worker.
How will the date be set?
The code encourages the employer and the worker to agree a mutually convenient date and location. If the chosen companion cannot attend, the worker has the right to postpone, but they must offer an alternative time and date within the following five working days.
How can a worker complain?
A worker can complain to an employment tribunal if they are not allowed to be accompanied, or if an employer refuses to rearrange to a reasonably convenient date. If the application to the tribunal is successful, the worker will be awarded two weeks' pay, currently capped at £280 per week. If the worker can show that their lack of opportunity to be accompanied rendered a dismissal unfair, then compensation will be subject to the normal limit of £56,800, or limitless if the act is proved to be discriminatory.
What do employers need to do?
The HR department and managers at all levels need to be familiar with the regulations. All procedures and management guidelines affected - such as guidance on record-keeping, the wording and structure of procedures, timescales, adjustments to standard letters, new arrangements for certain types of grievance where they do not already exist, and training - need to take the guidance in the code into account.
Training is important for both employers and trade unions. The code stresses the need for unions to ensure their officials are both experienced in performing this role, and are provided with periodic ‘refresher' training, and the same applies to managers.
The code also emphasises the need for managers to "know and be able to apply the rules and procedures", and suggests that organisations may benefit from joint management/trade union training.
The full code is available from the Acas website at www.acas.org.uk
Nikki Duncan is a partner at commercial law firm, Bond Pearce and a member of the Law Society's Employment Law Committee.