The Employment Act 2008 received the Royal Assent in November 2008 and has swept away the dispute resolution procedures which have proved so unpopular with employers since they were introduced in 2004.

Now that all the oddities and complexities of the Statutory Dispute Resolution Regulations have left us all behind, we are left with new provisions concerning disciplinary action, dismissals and grievances.

This new enactment incorporates reference to a code of conduct drafted by ACAS.  But, what does this new act actually mean for you as an employer?

We have prepared a brief summary below, which provides our own observations and practical considerations in interpreting and following the Employment Act 2008.

Q. Why you should follow the ACAS Code of Practice?
A. By following the ACAS Code, it is Parliament’s intention that such adherence will prevent you, as an employer ending up in the Employment Tribunal facing an unfair dismissal claim when dealing with disciplinary and dismissal matters.

Furthermore, there is provision in the code that allows an employment Judge to increase compensation to a successful payment by up to 25% if the employer fails to follow the Code of Practice.  The Tribunal would determine such uplift on a just and equitable basis.  Whereas the previous Dispute Resolution Regulations applied to dismissal for any reason, the new ACAS Code applies to misconduct and poor performance cases.

The Code of Practice does not include protocol to follow for redundancies neither does it include procedural steps for the non renewal of the fixed term contract.

Q. How should misconduct and/or poor performance be disciplined?
A. First and foremost the employer should investigate the issues.  This is likely to involve interviewing the alleged wrongdoer, gathering evidence and taking statements from witnesses.

As with the previous provisions prior to the Employment Act 2008, the employer may suspend the employee but should only do so as long as is necessary for the investigation to be reasonably undertaken.

If the investigation does lead to a disciplinary hearing, the employer should inform the employee of the issues and the allegations in writing.

As with the previous regulations and best practice guidelines, the employee should be advised of the possible outcome of the disciplinary hearing and that the employee has the right to be accompanied by a work colleague or a trade union official at the same.

The hearing should be chaired by an independent person who has not had any involvement in the proceedings up to that point.

At the hearing, the employer should explain the allegations and go through the evidence; the employer should be allowed to set out their case and answer the allegations and the employee should have a reasonable opportunity to ask questions, present evidence, call relevant witnesses and raise points about any information provided by witnesses.

Once a disciplinary hearing has reached a conclusion, the hearing should be called to a close.

The employer should convey the outcome of the disciplinary hearing to the employee in writing. 

It is important to remind the employee they have the right to appeal the decision and they should be advised of the appeal time limits.

Any appeal should be heard without delay and should be conducted impartially by a manager who has had no involvement in the investigation or disciplinary hearing up to that point.

As far as best practice advice is concerned, not much has really changed under the Employment Act 2008, however, the law on unfair dismissal, time limits for issuing a claim and compensation has. 

There is no longer the confusing entity of an automatic unfair dismissal under the Employment Act 2008. 

Although more for employees, we no longer have the three month extension of time in which to file the claim at the Employment Tribunal.  Therefore an employer should act promptly in dealing with an appeal matter following a disciplinary hearing.

Under the new regime an Employment Judge can adjust the level of compensation awarded to a successful claimant by up to 25% if the employer reasonably failed to follow the new ACAS Code of Practice.

Practical steps of the employer to undertake would be to:

• Involve employees in developing any new disciplinary procedures and make sure that they are accessible to employees
• Manage HR issues proactively prior to reaching a disciplinary hearing
• Investigate issues thoroughly and only hold a disciplinary hearing once the evidence has been gathered and considered
• Allocate management in advance of the potential disciplinary – one to investigate, one to hear the disciplinary and keep another manager in abeyance for an appeal

 

Q. How should grievance be managed?
A. As well as dismissal for conduct and performance the Employment Act 2008 also covers grievances.  Grievances or the statutory grievance scheme was introduced to resolve employment issues internally and reduce the pressure on Employment Tribunals up and down the country.  The best practices followed, however, the procedure would be similar if not identical to the old one. 

However, we would recommend that all employee’s grievances be put in writing and headed “Formal Letter of Grievance” – this should be implemented in your grievance procedure as there has been many a contentious hearing on whether a course of action constitutes a grievance or not.

You, the employer, should hold a meeting once you have received the written letter to allow the employee to explain their grievance and think how it should be resolved. 

We would suggest that if the grievance raises matters which need to be investigated, then as with the disciplinary procedure an investigation should be undertaken.

Once a grievance letter has been received, you should write to the employee requesting they attend a grievance meeting.

Such letter should include the name of the person sharing the grievance meeting and when and where the meeting will take place.

As with the disciplinary procedure, the letter should remind the employee they have the right to be accompanied by a Trade Union official or a work colleague.

Furthermore, once a decision has been reached following the meeting, the employee should be reminded they have a right of appeal.  Once more a different manager should chair the appeal.

As far as best practice advice is concerned, this has not really changed, however the impact of the procedure on the time limits and compensation has.

Under the new regime there is no automatic three month extension of time in which the employer has to file a claim at the Employment Tribunal if related to the grievance.  Therefore, this means an employer will have to undertake the grievance and appeal in good time as the clock is ticking.  As with the dismissal provisions, the Employment Tribunal may increase any compensation by up to 25% should the employee unreasonably fail to follow the ACAS Code of Practice.

In addition, should an employee fail to follow the grievance procedure, unlike the previous provisions in which the claim would be referred back to the employee, an Employment Tribunal will accept jurisdiction to hear a claim in relation to a grievance or under one jurisdiction where the grievance procedures apply.  However a successful outcome will result in a reduction in compensation by up to 25%.  Any reduction will be based on whether the employee unreasonably failed to follow the ACAS Code of Conduct in respect of grievances. 

The Employment Tribunal deals with the failure to follow the procedure “on a just and equitable basis” and they will have to determine whether an employee’s failure to follow the procedure was unreasonable.

This will be reflected in the compensation awarded to a successful employee. 

It is important to note that each case will turn on its own facts and that the evidence is therefore critical in every case.

This article is a summary of the procedures for disciplinary action and grievances. Should you wish to seek advice in relation to a specific matter, please feel free to send us an enquiry >>> 

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