Statutory disciplinary and grievance procedures

The Employment Act received Royal Assent on 8 July 2002. The key areas on which it focuses are maternity, paternity and adoption, tribunal reform and dispute resolution. The introduction of statutory disciplinary and grievance procedures was generally considered to be the biggest change in employment practice in the Act.

Originally it was thought that these procedures would be implemented in late 2003, then April 2004 and now, according to the DTI consultation document (published 9 July), October 2004.

This delay may be a result of the Act itself. Part 3 and Schedule 2, which together deal with dispute resolution, are relatively basic and to some degree raise more questions about the procedures than they answer.

Certain aspects of the procedures are clear, namely:

  • there is to be a new term implied in every employment contract which incorporates minimum standards for formal disciplinary and grievance procedures;
  • any failure by employers to adhere to these minimum standard procedures may be a breach of an employee’s contract;
  • if an employer does not follow the statutory disciplinary procedures, either entirely or in part, it will automatically amount to an unfair dismissal;
  • an employee will be barred from bringing a complaint to a Tribunal if he or she did not raise any grievance in writing and, if a grievance is made in writing, the employee must wait for 28 days before making a claim to a Tribunal;
  • if either the employer or the employee fails to follow the specified procedures, there will be a consequent effect on any award made by a Tribunal.

The consultation document, and draft regulations contained within it, give an indication as to the contents of the important subordinate legislation which will accompany the Act:

  • the standard dismissal and disciplinary procedures will normally apply where an employer wants to dismiss an employee or take action against him or her in connection with conduct or capability;
  • the modified dismissal procedure will only apply in a very limited number of situations, for example where dismissal is necessitated by circumstances outside the control of the employer or where there have been clear instances of gross misconduct;
  • the standard grievance procedure will generally apply where an employee wishes to complain about an action by an employer, apart from action relating to the dismissal and disciplinary procedures;
  • the modified grievance procedure will apply only where an employee’s employment has already ended, or it is not reasonably practicable to use the standard procedure or both parties agree to use the modified procedure;
  • neither party has to use the statutory procedures in certain circumstances, for example where one party is violent, abusive or behaves in an unacceptable way or the employee applies for ‘interim relief’;
  •  employment tribunal time limits will be extended in certain circumstances to allow extra time for statutory procedures to be completed.

The document also states that the government does not propose to make the dispute resolution procedures an implied term of all employment contracts at this time. The intention is to wait and see how the initial implementation of the procedures ‘beds down’ and to consider the need to effect this once the impact of the Regulations has been evaluated.

The closing date for making any comments on the draft regulations is 29 October 2003.

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