Are You Ready for the Repeal of the Statutory Dispute Resolution Procedures?

With effect from 6 April 2009, the statutory dispute resolution procedures (ie, the procedures dealing with disciplinary hearings, dismissals and grievances) will be repealed.

Employers will welcome the repeal of the prescriptive and complex procedures which have increased the number of workplace disputes.

The New Regime

The statutory procedures are being replaced on 6 April 2009 by a new ACAS (Code of Practice on Discipline and Grievance (the "Code") and a more comprehensive ACAS guidance booklet.

Employers should ensure that their current disciplinary and grievance procedures comply with the new regime.

Key Changes:

• There will no longer be a mandatory dispute resolution procedure which must be followed. This means that a dismissal will no longer be automatically unfair for failure to follow such a procedure.
• Minimum standards contained in the new ACAS Code should be followed.
• Unlike the statutory procedures, the Code and guidance are not legally binding, however, if an Employment Tribunal considers that an employer or an employee has unreasonably failed to follow the Code, it may adjust any compensation awarded by up to 25%.
• Employees will no longer have to bring a grievance before submitting an Employment Tribunal claim.
• The parties are urged to resolve disputes informally and to consider mediation.

Conducting Disciplinary and Grievance Procedures under the New Regime

• The Code essentially retains the three step process found in the current statutory procedures.
• The Code will not apply to redundancies, the expiry of fixed-term contracts, or collective grievances.
• Disciplinary warnings are included in the three step procedure in the new ACAS Code, so employers should allow an appeal against such warnings.
• Both parties should deal with issues promptly.
• Employers should consider if it is appropriate for an employee to be provided with copies of written evidence, including witness statements, prior to a disciplinary meeting.
• Employers must advise employees of their right to be accompanied at disciplinary and grievance hearings.There is guidance as to what a companion can (and cannot) do at a hearing.
• Employees must be given a reasonable opportunity to call witnesses at a disciplinary hearing.
• Employers can proceed with a disciplinary hearing in an employee's absence where an employee has been persistently unable or unwilling to attend without good cause.
• Overlapping or grievance and disciplinary issues, which were difficult to deal with under the statutory procedures, will be replaced with a less complex system.
• In misconduct cases, different people should carry out the investigation and disciplinary hearing.
• Employees should be involved in the development of rules and procedures.

Transitional Period

Although the statutory procedures will be repealed from 6 April 2009, there will be a transition period during which they will work in parallel with the new ACAS Code. The main provisions are that:

• If a disciplinary action is taken by an employer or an employee is dismissed prior to 6 April 2009, the statutory procedures will continue to apply.
• If an employee brings a grievance after 6 April 2009, but is complaining of an act by an employer which occurred prior to that date, then the statutory procedures will continue to apply.
• Provided that an employee presents an Employment Tribunal claim on or before 4 July 2009, or in the case of an equal pay or redundancy claim prior to 4 October 2009.

What should Employers do to Prepare for the New Regime?

• Consider whether their disciplinary and grievance procedures comply with the ACAS Code;
• Where possible, consider the timing of disciplinary and grievance hearings, taking into account the changing regime;
• Ensure staff who are involved in conducting disciplinary and grievance procedures are fully aware of and trained to follow the new regime.

For a free consultation on the above or any employment matter, please contact Wendy Smith, our Employment Solicitor on (DD) 01273 447071 (Switchboard) 08458 678 978 or via email to wendy.smith@acumenbusinesslaw.co.uk

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