'Dispute resolution' needs care.
New employment laws affecting staff dismissals and grievances are the most significant for a decade. If you are an employer, you should know that new statutory 'dispute resolution' procedures came into force on October 1. The rules probably represent the most significant piece of employment legislation in the last decade, affecting the way in which almost all employee dismissals and grievances are handled in the workplace.
If you have not done so already, it's now time to get your house in order. The new laws lay down statutory dismissal and disciplinary procedures (DDPs) and statutory grievance procedures (GPs).
The DDPs apply where an employer contemplates dismissing or taking relevant disciplinary action against an employee. There are two different procedures: standard and modified.
The standard procedure applies to the vast majority of dismissals and to all cases of 'relevant disciplinary action'. The modified procedure, which is essentially a shortened version, only applies to a small minority of clear-cut, gross misconduct dismissals.
The standard DDP predominantly applies to dismissal. It also applies to ' relevant disciplinary action' falling short of dismissal, such as demotion, transfer, extension of probation, etc.
However, it does not apply to disciplinary warnings or suspensions on pay. The three steps of the standard DDP are:
The employer sets out in writing the employee's alleged conduct or other circumstances (including the grounds) that led him to contemplate dismissing or taking relevant disciplinary action. The statement is sent to the employee and the employee invited to attend a meeting to discuss the matter;
After the meeting, the employer must inform the employee of his decision and of the right to appeal against it; and
If the employee appeals, the employer has to invite them to attend an appeal meeting. After the appeal meeting, the employer must inform the employee of their final decision.
The DDPs are minimum standard procedures only, they do not override existing requirements in relation to fair dismissals. Adherence to the new procedures will not mean a dismissal is necessarily fair. A dismissal may still be unfair if the employer did not have a fair reason for dismissal or did not act reasonably.
A grievance procedure is 'a complaint by an employee about action the employer has taken or is contemplating taking in relation to him'.
Again, there are two procedures: the standard and the modified procedures. The standard procedure applies in cases where the employee is still employed, and in most cases where the employee is no longer employed. The modified procedure, again an abbreviated version, applies to former employees but only in certain circumstances.
The three steps of the standard GP are:
The employee set outs in writing their grievance and the basis for it and sends it to the employer;
The employer must invite the employee to attend a meeting to discuss the grievance. After the meeting, the employer has to inform the employee of his decision and of the right to appeal against it; and
If the employee appeals, an appeal meeting needs to be arranged. After the appeal meeting, the employer must inform the employee of his final decision.
There are some important general requirements applicable to both sets of procedures: each action must be taken without unreasonable delay and the timing and location of meetings must be reasonable; the meetings must be conducted so that both parties can explain their cases; in the case of appeal meetings, a more senior manager should attend for the employer than attended the first meeting; and a meeting is a hearing for the purposes of the right to be accompanied by a work colleague or trade union official.
On the face of it, you may find that your existing procedures for dealing with disciplinary issues and grievances already comply.
Unfortunately, it's not as simple as that. In addition to conduct and capability dismissals, redundancies, long-term incapacity dismissals, expiry of fixed-term contracts and retirements all fall within the procedures.
In addition, they apply from day one of employment, so, for example, still need to be followed when dismissing an unsuitable probationer. Unwary employers could easily find themselves falling foul of the rules.
The consequences of non- compliance are particularly severe, including the finding of automatic unfair dismissal, with no scope for the employer to defend the claim, and an increase in any compensation awarded by between 10 and 50%.