On 6 April 2009 the main provisions of the Employment Act 2008 ("the Act") will come into force. The Act will make a number of significant changes to the way in which workplace disputes will be handled.
In particular the Act will:
- Completely repeal the Statutory Dispute Resolution Procedures ("SDRPs"), which were brought into effect in 2004. The SDRPs set out a statutory ‘3 step' procedure for dealing with grievances and disciplinary matters in the workplace.
- Repeal section 98A of the Employment Rights Act 2002. In broad terms, this section sets out that a dismissal will be automatically unfair where the employer has failed to comply with the SDRPs and provides that any compensation awarded to an employee must be uplifted by between 10 and 50%.
- Give Tribunals the discretion to adjust compensation by up to 25% where either the employer or employee ‘unreasonably fails to comply' with a relevant section of the new ACAS Code of Practice ("the Code").
As the Code is, in effect, replacing the SDRPs as the rules that employers must follow when dealing with disciplinary or grievance matters, employers need to ensure they are aware of it, and of its content and effect, prior to 6 April 2009.
The Effect of the Code
The Code does not have statutory effect. Failure to comply with its provisions will not make a dismissal unfair, and nor will an employee be barred from making a claim, where no grievance has been raised.
However, the Code will be taken into account by Tribunals and adjustments to compensation can still be made. The Code is still in draft form, but it is unlikely any more changes will be made.
Content of the Code
Employers who are concerned about getting to grips with a completely new regime can take comfort from the fact that the Code runs to only 10 pages, and does not markedly differ from the SDRPs.
When contemplating dismissal or disciplinary action, employers must still inform the employee of the problem, hold a meeting with the employee to discuss the problem, allow the employee to be accompanied at the meeting, and provide employees with an opportunity to appeal.
Similarly, on receipt of a grievance, an employer should hold a meeting with the employee to discuss the grievance, allow the employee to be accompanied, and allow the employee to take the grievance further if the matter is not resolved.
One notable change is that, unlike the SDRPs, the Code will not apply to redundancy dismissals, nor to the expiry of fixed term contracts.
The Code is a sort of simplified version of the SDRPs, and sets out the basic principles of fairness that employers should abide by. It also attempts to deal with some ‘problem areas' of dispute resolution, such as how to conduct fair procedures where a grievance is raised part-way through a disciplinary process, or where the employee repeatedly fails to attend a disciplinary meeting.
The Code is accompanied by a 74 page guidance document ("the Guide"). Both the Code and the Guide are available from ACAS. Whilst Tribunals must take the provisions of the Code into account, they are not obliged to take note of the Guide.
Although the new regime comes into force on 6 April 2009, there are some transitional provisions in the new legislation.
For disciplinary matters, the old regime (i.e. the SDRPs) will apply where the employer has commenced disciplinary action prior to 5 April 2009.
For grievances, the old regime will apply where the action that forms the basis of the grievances occurs wholly or mainly before 6 April 2009, or begins before 5 April 2009, (and continues after that date) but the employee submits a grievance (or an ET1 form) on or before 4 July 2009 (or before 4 October 2009 for equal pay claims or other claims with a 6 month time limit).
What to Expect from the Code
The main effect of the new regime is to bring things back to the position we were in prior to the SDRPs coming into force. Tribunals will be able to use their discretion to judge whether an employer acted fairly in dismissing an employee, looking at all of the circumstances of the case, rather than focusing on procedural defects.
The Code itself recognises that "it may sometimes not be practicable for all employers to take all of the steps set out in this Code", and Tribunals must take the size and resources of an employer into account.
The hope is that employers will be able to concentrate on the disciplinary or grievance matter in hand, rather than the procedural hoops that they need to jump through.
How should Employers Prepare?
It must be remembered that, although the Code does not have statutory effect, failure to abide by its provisions can lead to an adjustment to awards of compensation.
Employers should therefore ensure they are familiar with the Code and with the Guide. Employers with written disciplinary procedures should have them reviewed to ensure compliance with the new procedural requirements, and employers without written procedures should ensure that they introduce them before April 2009. The Code expressly states:
"Fairness and transparency are promoted by developing and using rules and procedures for handling disciplinary and grievance situations. These should be set down in writing, be specific and clear."
Employers should also consider training managers and more senior staff who may be involved in dealing with disciplinary and grievance matters.
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