Repeal of the Statutory Procedures and Effect this will have on Employers
From 6 April 2009 the statutory disciplinary and grievance procedures (the “Statutory Procedures”) for handling workplace disputes will be repealed and replaced with a revised ACAS Code of Practice (the “New Code”).
Why the Change?
When the Statutory Procedures came into force in 2004, the intention was to encourage employment disputes to be resolved in the workplace, without the need to go to Tribunal. However, as many Employers will know, this rarely happened in practice, due in no small part to the confusion surrounding what constituted a statutory grievance.
Following a wide-spread consensus amongst lawyers, trade unions and Employers that the Statutory Procedures were not working as intended, the Government carried out a review. The result of that review was to repeal the Statutory Procedures and replace them with the New Code.
What impact will the new rules have on Employers?
The repeal of the Statutory Procedures will come as good news to many Employers. The new rules mean there will no longer be a legal requirement to follow the strict statutory 3 step procedure when dealing with discipline and grievance issues. Instead, Employers will be expected to comply with the New Code and a Tribunal will make a decision as to what is "fair and reasonable" in the circumstances, rather than whether a strict formulaic procedure has been followed throughout.
What do Employers need to know?
For discipline and grievance issues that arise before 6 April 2009 the old rules still apply and so Employers must still follow the statutory 3 step procedure. However, for discipline and grievance issues that arise on or after 6 April 2009, there will be less emphasis on how to manage such issues and more flexibility for issues to be resolved at an early stage, informally and within the workplace.
With specific reference to disciplinary issues, the New Code introduces a requirement to carry out a thorough investigation prior to any disciplinary action being taken (not a requirement in the Statutory Procedures). A failure to comply with this requirement will be considered a breach of the New Code, the result of which could be an uplift in compensation being awarded to an employee (see below).
Despite the intention of creating a more “relaxed” approach to handling discipline and grievance issues in the workplace, Employers who fail to comply with the New Code could still face an uplift in compensation awarded to employees of up to 25%. Under the old rules, compensation of up to 50% could be awarded, a further indication of the emphasis shifting from a strict formulaic procedure.
What do Employers need to do?
Whilst it is not necessary for Employers to re-write their discipline and grievance procedures in advance of the New Code taking effect, Tribunals will still expect Employers to comply with their existing policies. In practice this means that despite the new rules, if discipline and grievance procedures are not reviewed, most Employers will still be required to follow the statutory 3 step procedure.
In addition, Tribunals will still look at the wording of internal policies and procedures when dealing with discipline and grievance cases and Employers should take all steps necessary to avoid a conflict between what their policies say and what procedure they follow in practice.
Practical Tips
We would advise Employers to undertake a review of their discipline and grievance procedures in advance of the New Code coming into force on 6 April 2009. This will ensure that their procedures are up to date and consistent with the New Code.
Linder Myers LLP is able to carry out a review of existing discipline and grievance procedures to ensure that they are consistent with the New Code.
26 FEBRUARY 2009
For further information on Linder Myers expertise in dealing with the issues raised in this article please contact:
JOANNE WHITE, SOLICITOR
EMPLOYMENT DEPT
0161 837 6832
joanne.white@lindermyers.co.uk
