Disciplinary, dismissal and grievance procedures
Employers and employees will both be pleased to know that the DTI has now announced a review with the intention of simplifying and improving employment dispute resolution.
The DTI has announced that there is to be a "root and branch review of Government support for resolving disputes in the workplace … to make the system work better for employers and employees. The review will involve business representatives, unions and other interested parties in considering the options for change."
It is not yet clear when any reform will take place, but initial recommendations are expected to be made during Spring 2007.
Background
Most employers will now be familiar with the statutory disciplinary and grievance procedures that were introduced in October 2004, with the noble intention of encouraging the resolution of disputes within the workplace.
In relation to most workplace grievances, the statutory grievance procedures (SGP) now require that:
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an employee put his complaint in writing and give this to the employer,
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the employer to then invite the employee to a meeting to discuss the complaint,
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after the meeting, the employer is then required to confirm the decision in writing and allow the employee a right of appeal.
If an employee fails to submit a written grievance, he is prevented from making a claim to an employment tribunal until he has done so. Conversely, the time limits for making a claim are automatically extended from 3 to 6 months for employees who do submit a grievance. If the employee submits a grievance but then does not comply with the other requirements of the SGP, any compensation he is awarded by an employment tribunal can also be reduced by between 10% and 50%.
In relation to most disciplinary and dismissal matters, the statutory disciplinary and dismissal procedures (DDP) now require that:
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an employer write to an employee with details of the allegations against the employee, or with reasons for the proposed dismissal
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the employer is then required to invite the employee to a meeting to discuss the situation
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after the meeting, the employer is required to confirm the decision in writing. As with the SGP's, the employer must offer a right of appeal.
If an employer does not comply with the DDP, a dismissal will usually be automatically unfair. If an employee is awarded compensation by an employment tribunal, compensation may be increased by between 10% and 50%.
Complexity
The SGP's and DDP's have proven difficult to apply in practice and have been criticised by many people, including Judges, for being too complex.
There have now been a number of tribunal decisions on what the regulations actually mean and on what an employee or an employer is required to do to comply with the procedures, particularly relating to what does or does not amount to a "grievance". The various tribunal decisions have generally set a low threshold for compliance.
However, harsh results are still arrived at and a failure to comply with the procedures can often have severe consequences. For example, it will usually be too late for an employee to lodge a new employment tribunal claim by the time it has been decided that his "grievance" did not comply with the SGP. That was the outcome in the recent case of City of Bradford MDC -v- Pratt. The Judge in that case, HHJ Richardson, commented as follows:
"I reach this conclusion with no great satisfaction, for I share the views… as to the potential for the Employment Act 2002 to operate technically and harshly. Speaking for myself, I question whether there is a need for a legal provision which bars access to the Tribunal altogether if an applicable statutory grievance procedure is not followed by the employee. It is arguable that broadly the same practical result could be achieved by placing upon Tribunals a duty to stay [i.e. suspend] proceedings while statutory procedures are undertaken."
For further information please contact: Alison Gow