Ashley Brown | Associate, London

Introduction
The Employment Act 2008, introduced in the UK in April 2009, contained new rules regarding dispute resolution that were designed to replace the previous complex and heavily criticized statutory dispute resolution procedures.

Criticism of Old Procedure
Although the statutory dispute resolution procedures were originally introduced with the aim of reducing tribunal claims, they ended up “formalizing” disputes at an early stage in the process, leaving no room for informal discussions. Noncompliance often brought draconian consequences, including losing the right to present a claim, findings of automatic unfair dismissal, and possible adjustment to compensation awards.

ACAS Code Practice on Discipline and Grievance
The statutory dispute resolution procedures have now been repealed and replaced with an ACAS Code of Practice on Discipline and Grievance (the Code), available for download from www.acas.org. The Code provides clear and simple guidance on how to handle grievances and disciplinary issues for both employees and employers, and is accompanied by a nonstatutory guide, Discipline and Grievances at Work: The ACAS Guide, which gives further guidance on best practices.

Employers’ Obligations under the Code
This article considers what actions employers will be required to take under the Code’s main provisions. For instance:

• While the Code is not legally binding, and a failure to follow the Code will not automatically result in a penalty of any kind (and so will not automatically make a dismissal unfair), tribunals must take the Code into account where appropriate. It is likely, however, that if an employer does not follow the Code, the dismissal will have been unfair.

• Where there has been an unreasonable failure to follow the Code, tribunals may adjust a compensation award (either up or down) by up to 25%, depending upon which party is at fault. (Though in reality, the Code imposes few obligations on the part of the employee, so it is hard to see how an award could be reduced.)

• Employees are no longer required to raise a grievance before bringing a claim in the tribunal (previously, tribunals were not able to accept a complaint from an employee unless the employee had raised a grievance and waited 28 days).

There is a move away from the “one size fits all” approach to dismissals, and the new Code specifically does not apply to dismissals made for reason of redundancy. Previously, almost any type of dismissal was potentially covered by the statutory dismissal rules. Employers should seek legal advice prior to dismissal as there is a danger that if the Code is not followed because the employer believes there is a genuine redundancy situation, and the tribunal then finds that the employee was dismissed for a reason covered by the Code, the Tribunal may decide to increase the award. Employers should also keep the following principles in mind when handling dismissals and grievance issues:

• Employers and employees should raise and deal with issues promptly, and should not unreasonably delay meetings, decisions, or confirmation of those decisions.

• Employers and employees should act consistently.

• Employers should carry out any investigations that are needed to establish the facts of the case.

• Employers should inform employees of the basis of the problem and give the employees an opportunity to formally respond before any decisions are made.

• Employers should allow employees to be accompanied by a fellow worker or a trade union representative at any formal disciplinary or grievance meeting.

• Employers should allow an employee to appeal against any formal decision made.

When Do the New Provisions Take Effect?
Although the existing statutory dispute resolution procedures were repealed on April 6, 2009, there will be a transitional period during which the old procedures will continue to apply.

Discipline and dismissal cases
The old statutory dispute resolution procedures will apply if an employer has, either on or before April 5, 2009:

• Dismissed an employee

• Taken disciplinary action against an employee; or

• Issued a “Step 1 letter” or held a “Step 2 meeting” in accordance with the old disciplinary and dismissal procedure

If an employer has not done any of these before April 6, 2009, the Code and the new regime will apply instead.

Grievance cases
The statutory grievance procedures will apply where the actions complained of by the employee relate to the period wholly or mainly prior to April 6, 2009.

If the action complained of begins on or before April 5, 2009 and continues beyond that date, the statutory grievance procedure will only apply if the employee either sends a grievance letter or presents a complaint to a tribunal based on the grievance on or before July 4, 2009 (for most types of claim). For cases of equal pay or statutory redundancy payment claims and certain industrial action dismissal claims, the cut-off date is October 4, 2009.

Actions for Employers

• Review existing disciplinary and grievance policies and procedures to make sure they comply with the Code.

• If a company does not have any rules or procedures in place, it should consider producing a simple set, as the Code recommends that rules and procedures be “set down in writing,” and be“specific and clear.” Technically, an employer could be in breach for failing to have written procedures in place, even if its unwritten policies follow an otherwise fair procedure.

• Employers are also advised to give employees and managers training on the Code; the Code states that employees and managers should understand what the rules and procedures are, where they can be found, and how they are to be used.