The regulations that govern how employers handle discipline, dismissal and grievance issues in the workplace change as from 6 April 2009.
The new system is designed to be more straightforward and flexible, the aim being to help employers resolve disputes before they reach the point of an employment tribunal.
The hope is the new rules will cut down on the time, money and stress that disputes can mean for employers. Which is why the emphasis is now being placed on dispute resolution mechanisms.
The Employment Act 2008 has implemented a number of changes.
The existing statutory procedures for dealing with discipline, dismissal and grievance issues, as established by the 2002 Act, are repealed.
A revised Acas Code of Practice is introduced, and Acas, the employment relations body, is to provide a free, early conciliation service.
Employment tribunals will have discretionary powers to adjust awards by up to 25 per cent if employers or employees fail unreasonably to comply with the Acas Code.
Tribunals will be allowed to award compensation for financial loss in certain types of claims.
The Acas Code of Practice
The new code replaces the previous Acas code, which was issued in 2004, and it establishes fair and transparent procedures that need to be observed in disputes. Adopting this sort of approach will be less time consuming and less likely to harm working relations.
Employees should be involved in the drawing up of these procedures, which should then be put in writing.
It is important that employees understand them, know where they can be found and know how they are to be used.
The code covers a number of principles that need to be followed to ensure that the process is fair, efficient and straightforward.
Issues should be raised and dealt with promptly. Meetings and decisions should not be delayed unreasonably.
Employers should always behave consistently. The facts of a particular case should be established through any necessary investigations.
Employees should be told of the problem and provided with an opportunity to set out their case before any decisions are made.
Employees should also be allowed to bring someone with them to formal disciplinary or grievance meetings, and they should be entitled to appeal against any formal decision made.
In instances of grievances only, the employee should explain the cause of the grievance to the employer at a formal meeting which both the employer and employee must make every effort to attend.
The employer should decide what is an appropriate course of action and inform the employee of this in writing. If the problem is not resolved, the employee should be permitted to take grievance further.
If an employee raises a grievance during a disciplinary process, the disciplinary may be suspended temporarily in order to deal with the grievance. If the two are related, it may be appropriate to deal with both at once.
Whereas the old code was mandatory in the procedures that had to be followed, the revised code is not. That means that failing to observe the code does not necessarily make a person or business liable.
However, employment tribunals will take the code into account when considering relevant cases. The tribunal will consider whether any failure to follow the code was unreasonable, while also recognising specific factors such as the size and resources of the business. Should the tribunal judge the failure to follow the code, by employer or employee, as unreasonable, it may adjust any awards up or down by 25 per cent.
The code defines grievances as “concerns, problems or complaints that employees raise with their employers”. The word “grievance” does not need to be used in the complaint.
When the complaint is presented in writing, it is probable that it will qualify as a grievance, which means the employer should†treat it as such.
Employers should acknowledge the complaint and invite the employee to a formal meeting. By following the code and with guidance from Acas or a legal adviser, an employer should be able to handle problems before an employment tribunal is the only remaining option.
Acas defines disciplinary situations as those that include “misconduct and/or poor performance” on the part of the employee.
If businesses that have a procedure in place for dealing with the performances of an employees, this can be used; but the principles of ‘fairness’ set out in the code need to be observed.
When the internal procedures of a business can’t solve a particular problem, employers should consider using an independent third party. A mediator may be someone who works within the same organisation, provided they are properly trained and not involved in the dispute, or may come from outside the business.
Employment disputes in 2009
With the change in regulation, employers may want to know how they should deal with disputes that straddle the 6 April dateline.
If the trigger event occurs on or after 6 April 2009, they should follow the new procedures based on the 2008 Act. If the trigger event occurs on or before 5 April 2009, they should follow the old procedures based on the 2002 Act.
In the case of a disciplinary or dismissal case, the date of the trigger event will be that on which the employer starts action against the employee. That is, the date the employee receives the letter that explains a disciplinary action is being contemplated.
Where no letter is sent, the date of the meeting at which the issue is raised will be the trigger point. In the absence of both, the trigger point is the date on which the disciplinary action is taken.
In the case of a grievance, the trigger date is the date of the action about which the employee complains.
More information on whether the new or old system applies can be found at www.berr.gov.uk/resolvingdisputes
Preparing for the new legislation
If your procedures for dealing with grievance, dismissal and disciplinary issues comply with current legislation (pre-6 April 2009), you may not have to change them to comply with the new code.
However, it does present the opportunity to review those procedures to make them easier to understand and apply. For example, you could draw up a more relaxed and informal approach to dealing with problems at work and consider including a mediation stage in your internal processes.
The Acas Helpline, on 08457 47 47 47, is open 8am-8pm Monday to Friday and 9am-1pm on Saturdays.
A copy of the new code can be downloaded at www.acas.org.uk/dgcode2009
This is only a brief outline of the new rules, and any employer who is unsure about the effects on their employment policies should seek professional advice.