NEW ERA FOR GRIEVANCE AND DISCIPLINE Richard Arthur

“NEW ERA FOR GRIEVANCE AND DISCIPLINE? ” Richard Arthur Thompsons Solicitors 15 October 2008 Page 1

The 2004 Procedures: • 3 step procedure which must be followed by an employer considering dismissing an employee, or by an employee considering bringing an ET claim; • Written notification, meeting, appeal; • Bar on commencing ET claim unless grievance filed and 28 days expires; • Extension of time limits; • Adjustments to compensation; • Polkey reversal. Page 2

The Gibbons Review: “… although there is some evidence that the procedures have encouraged more early resolution of disputes, they have also created a high administrative burden and had significant unintended consequences which outweighed the benefits. ” Page 3

Government Consultation Response: • • 76% of respondents favoured repeal; Restoration of Polkey; “Short, non-prescriptive ACAS Code of Practice”; “Comprehensive accompanying non-statutory ACAS guidance”; • Simple claims to be determined without hearing; • Removal of fixed conciliation periods; • Simplification of ET forms. Page 4

Employment Bill: • • Repeal of statutory dispute resolution procedures; “Reversal of the Polkey reversal”; Adjustment of awards by up to 25%; Determination of proceedings without hearing if all parties consent; • Duty to conciliate, repeal of fixed conciliation periods; • Compensation for financial loss for unlawful deductions from wages/redundancy payment claims. Page 5

Adjustment of awards If: • a “Relevant Code of Practice” applies; and • the employer/employee has failed to comply with that Code of Practice; and • that failure was “unreasonable” the ET may, if it considers it just and equitable to do so, increase/reduce any award by no more than 25%. Page 6

Draft ACAS Code of Practice: • Short and “principles based”; • “A failure to follow the Code does not, in itself, make a person or organisation liable to proceedings”; • “Employers and employees should do all that they can to resolve disciplinary and grievance issues in the workplace”; • “Recourse to an Employment Tribunal should only be a last resort” Page 7

• • ACAS Code: Discipline Establish the facts; Inform the employee of the problem; Hold a meeting; Allow the employee to be accompanied; Decide on appropriate action; Provide an opportunity to appeal; Special cases: trade union officials. Page 8

• • • ACAS Code: Grievances “Let the employer know the nature of the grievance”; Hold a meeting; Allow the employee to be accompanied; Decide on appropriate action; Allow the employee to take further if not resolved; Special cases: bullying, harassment and whistleblowing. Page 9

Sound familiar? Page 10

• • ACAS Code of Practice: Issues Apparently relevant to liability and compensation adjustment; Exactly when does the 25% uplift/reduction apply (eg right of accompaniment)? Reintroduction of 2004 procedures by the back door? What obligations are placed on employees in relation to grievances? Page 11

More Detailed ACAS Guidance: • Has “no status at an Employment Tribunal”; • Expands upon the Code of Practice. Page 12

Implementation: • Projected: April 2009; • Complex transitional provisions likely; • “Trigger” for application of new procedures likely to be whether the date of the dismissal or disciplinary action/the event giving rise to the grievance is before 1 April 2009; Page 13

• • Conclusions: Likely to be a “throughput” period of al least a year as cases under the 2004 regime work their way through; Transitional provisions while the two regimes work in parallel; Certain aspects of the case law on the 2004 procedures may survive-eg what is a grievance? We are not returning to the pre-2004 world; There will be opportunities for adjustments/reductions; More procedures will need to be followed-grievances, meetings and appeals; It remains to be seen just how “new” the new world will be. Page 14