Employment Law Explained

The Statutory Disciplinary and Grievance Procedures.

The Employment Act 2002 introduces a compulsory system for resolving disputes in the workplace. The core elements are:

- mandatory dismissal and disciplinary procedures - which, if the employer does not follow them, will normally render a dismissal automatically unfair.
- A mandatory grievance procedure - which, if the employee does not invoke it, will normally prevent him from presenting a claim in the employment tribunal.
- Boosting and reducing tribunal awards to reflect non or partial compliance with the disciplinary and grievance procedures.

The rules are bewilderingly complicated and the general public are not assisted in there interpretation.

A. Statutory Dismissal and Disciplinary Procedures. (DDP's)

They apply when an employer contemplates dismissing or taking "relevant disciplinary action" against an employee. "RDA" is action short of dismissal, which is based on employees conduct or capability (Other than suspension on full pay and the issue of warnings, neither of which attract the DDP's).

So, DDP's apply:

In relation to dismissal on the grounds of redundancy, capability, conduct, non renewals of fixed term contracts, retirement, some other substantial reason, demotion for a conduct of capability issue, reallocation of duties, imposition of a monitoring period, suspension without pay.

Note: as the procedures lack contractual status, a breach will NOT entitle an employee to resign and claim constructive dismissal.

So, DDP's NOT apply:

Issuing of warnings for conduct or capability issues, suspension on full pay, dismissal for breach of a statutory provision, in constructive dismissal cases (where the GP applies)

The procedures:

1. Standard
2. Modified

Standard will apply as above unless the modified procedure applies or no procedure applies.

- Statement of grounds for action and invitation to meeting
- Meeting / Notification of decision
- Right of appeal

There are cases where neither procedure needs tom be followed, namely:

Varying contract terms; collective redundancies; strikes or industrial action, sudden closure of the business, breach of statutory duty, where a disciplinary procedures agreement exists.

Failure to follow new DDP's ?

1. Dismissal will be adjudged automatically unfair
2. Compensation increased (by between 10 and 50%)

As to former, just because employer follows the new procedure does not mean a dismissal will necessarily be fair - may be unfair because no employer would have reasonable grounds to believe ion the employee's guilt or the decision does not fall within the band of reasonable responses.

What if an employer follows the new procedure but there are other procedural errors of unfairness ? - S98a(2) provide that failure to follow a procedure other than Stat DDP will not of itself render the dismissal unfair if he shows would still have dismissed if he had followed the proper procedure. ? for Tribunal - would having followed the procedure have made any difference ? (stated as overturning the rule in Polkey).

B. Statutory Grievance Procedures.

These apply where an employee (not agency workers) has a grievance against his employer, (the subject matter of which could found a particular type of tribunal claim of which many are listed. ie. Equal pay, sex discrimination, unfair dismissal, breach of contract, redundancy payments, unauthorised deductions etc). Excluded are claims relating to part time and fixed term contract less favourable treatment claims and the right to be accompanied.

Two types: Standard and Modified.

Standard.

1. Statement of grievance
2. Meeting
3. Appeal

Modified. (employment has ended; employer unaware of grievance or procedure not ended at termination; parties agree in writing that it applies

1. Statement of grievance
2. Decision in writing

The "modified" procedure applies where employment has ended and the standard GP has not been started or not been completed by the end of employment and both parties agree to follow the modified GP.

Neither GP apply (so no automatic 3 month extension), where:

- Where employment has ended and it is not practicable to comply;
- where the grievance concerns actual of contemplated dismissal.
- where the grievance is about "relevant disciplinary action" ie action short of dismissal which employer asserts is because of the employees conduct or capability other than suspension on full pay or warnings" ie. Demotion, reallocation of duties, suspension without pay. BUT * (1) where employee alleges the action amounts to unlawful discrimination then parties deemed to have complied with GP if employee lodges his grievance before the appeal hearing of the DDP OR if no DDP being followed and employee lodges grievance before presenting his ET1 OR (2) where employee alleges real reason for RDA was not the reason given by the employer.

Deemed completion of GP's:

- see *(1), parties deemed to have complied with GP.
- Where employment has ended but the standard procedure applies and oinbce employee has sent his grievance, it is not reasonable practicable for wither the employee or employer to comply with remain g requirements.
- Collective grievances raised by union or elective rep under an established grievance procedure.
- Collective agreement grievance.