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Grievance and disciplinary procedures

From 6 April 2009, new grievance, disciplinary, and dismissal procedures allow greater flexibility when resolving disputes in the workplace. However, under transitional provisions, the previous rules in Employment Act 2002 will continue to apply in some cases.

New rules from April 2009

From 6 April 2009 new grievance, disciplinary, and dismissal procedures will allow greater flexibility when resolving disputes in the workplace. The previous rules under Employment Act 2002 were supposed to encourage informal resolution of disputes, but they often led in practice to disputes getting formalised at an earlier stage than before.

Summary of the new rules (Employment Act 2008)

Where the new rules apply (see below Which rules apply?), their most important effect is that you no longer have to raise a written grievance before you are able to claim to an Employment Tribunal. That requirement is abolished, as are the statutory disciplinary and grievance procedures introduced by the Employment Act 2002.

However the new Employment Act 2008 says that any compensation you receive may be reduced by up to 25% if you unreasonably fail to comply with a new ACAS 'Code of Practice: Disciplinary and Grievance Procedures'. Similarly, compensation may be increased by up to 25% if the employer unreasonably fails to comply with the Code. The new Code is at www.acas.org.uk/index.aspx?articleid=2174.

For example, at paragraph 31 the Code says: "If it is not possible to resolve a grievance informally employees should raise the matter formally and without unreasonable delay with a manager who is not the subject of the grievance. This should be done in writing and should set out the nature of the grievance."

ACAS has also produced a non-statutory guide - www.acas.org.uk/index.aspx?articleid=2179 - which supplements the Code. Tribunals are not required to pay regard to this guide (nor to the 'Foreward' of the Code itself), but it is expected that they will do so.

Which rules apply?

The new position, in Employment Act 2008, applies if the 'trigger event' was after 5th April 2009. Otherwise the Employment Act 2002 below will apply.

For more detail on which set of rules apply, including examples, see the BERR website.

Scope of the new rule on adjustment of compensation

The new rule in Employment Act 2008, allowing compensation to be adjusted up or down by up to 25% for an unreasonable breach of the Code, will not apply to all disputes.

Like Employment Act 2002, this possibility of adjustment only applies to complaints by employees. So there could be no 25% adjustment where the complainant is a job applicant who has not been taken on by the employer, perhaps because of alleged discrimination.

Also this possibility of adjustment applies only if the person is an employee in the legal sense. This means there will be no 25% adjustment where, for example, the case is brought by a self-employed person falling within the DDA (see Employment: Scope).

Further, the rule allowing for the adjustment only applies where the matter is one to which the Code applies. Tribunal decisions may be needed to determine just what matters the Code applies to. The Code says (in paragraph 1) that it is designed to help employers, employees and their representatives deal with disciplinary and grievance situations in the workplace. It expands on what this means:

"Disciplinary situations include misconduct and/or poor performance. If employers have a separate capability procedure they may prefer to address performance issues under this procedure. If so, however, the basic principles of fairness set out in this Code should still be followed, albeit that they may need to be adapted. Grievances are concerns, problems or complaints that employees raise with their employers."

The Code also says that it does not apply to redundancy dismissals, or the non renewal of fixed term contracts on their expiry.

Further links

Before 6th April 2009 - Employment Act 2002

The Employment Act 2002 Act brought in statutory "dismissal and disciplinary procedures" and "grievance procedures". The idea was to encourage more resolution of employment disputes internally without recourse to a tribunal.

Where a grievance procedure applies, an employee is normally not be able to present a DDA complaint to an employment tribunal unless he has complied with the first step of the procedure (s.32(2)(6)). The first step is that the employee must set out the grievance in writing and send the statement or a copy of it to the employer. The employee will not be able to lodge a claim for a further 28 days after the statement is sent (s.32(3)(6)). There are also rules on the time within which the written statement of grievance should be sent (s.32(4)(5)(6)).

Furthermore section 31 provides for compensation awards to be adjusted upwards or downwards by 10-50% if the employee or employer fails to complete the applicable procedure.

The time limits associated with employment tribunal applications are extended in certain circumstances to allow extra time for the statutory procedures to be completed.

Subject to exceptions, the grievance procedure applies to "any grievance about action by the employer" that could form the basis of a DDA complaint (reg 6(1) of SI 2004 No 752 - see also definition of 'grievance' in reg 2). "Action" includes an omission. In some DDA cases it is not clear whether there will have been "action by the employer" - eg if there has been harassment by a work colleague.

The full text of the Act is available. Regulations SI 2004 No 752 have been passed to supplement the statute.

Further links

Businesslink.gov.uk: Statutory grievance procedures and Statutory disciplinary and dismissal procedures.


Employment: complaints and going to court"

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Last updated 3rd April, 2009