Statutory Dispute Resolution Procedures

Summary: Statutory procedures for dismissals, disciplinary actions and grievances are to be introduced on 1 October 2004. Employment tribunals will take into consideration whether either party has followed each stage of each procedure and, in the event of a failure, may increase or decrease the value of awards. The statutory procedures do not apply if contractual procedures are set out in collective agreements.

The Employment Act 2002 introduces the concept of "statutory dismissal and disciplinary procedures" (SDDPs) and "statutory grievance procedures" (SGPs). Employers will be required to apply the procedures and employment tribunals will take their use into consideration in reaching decisions. "Standard" three-stage procedures are defined in the Act, with "modified" two-stage procedures for use in certain situations. The Act allows for the making of Regulations to give effect to the procedures. Following lengthy consultation, the Government has published its responses to the feedback received and has placed the Employment Act 2002 (Dispute Resolution) Regulations 2004 before Parliament.

The key aspects of the Regulations are set out in the following paragraphs. It must be understood that further adjustments may be made to the Regulations before they take effect.

Dismissal and disciplinary procedures
The standard SDDP applies when an employer contemplates dismissing or taking action, short of dismissal, that the employer asserts to be based wholly or mainly on the employee's conduct or capability, other than suspension on full pay or the issuing of oral or written warnings.

The modified SDDP applies where an employee is dismissed summarily, i.e. where

• the employee is dismissed without notice for reasons of conduct,
• at the time the employer became aware of the conduct or immediately thereafter,
• the employer was entitled in the circumstances to dismiss without notice or payment in lieu of notice, and
• it was reasonable in the circumstances for the employer to dismiss before making enquiries into the circumstances in which the conduct took place.

• "collective" dismissals, if the employer offers to re-engage all of the employees before their contracts expire
• redundancy dismissals where proper consultation has been carried out
• dismissals of strikers taking part in unofficial and unprotected industrial action, unless an employment tribunal would be entitled to consider the fairness of the dismissal
• dismissals of strikers taking part in protected industrial action and the dismissal would be regarded as unfair
• dismissals due to the employer's business ceasing to function due to an unforeseen event
• dismissals because it would be unlawful for the employee to continue to be employed
• dismissals under the provisions of a jointly agreed dismissal procedures agreement and approved by a statutory Order.

• the employee presents an application for interim relief to an employment tribunal instead of appealing the employer's action under the provisions of the SDDP, or
• the employee is entitled to, and actually does, appeal against the employer's action under the provisions of a disciplinary procedure set out in a collective agreement.

• reduce an award that it makes to an employee by at least 10% and up to 50% if the relevant SDDP was not completed before the proceedings began because the employee failed to comply with a requirement of the procedure or did not exercise the right to appeal, and
• increase an award that it makes to an employee by at least 10% and up to 50% if the relevant SDDP was not completed before the proceedings began because the employer failed to comply with a requirement of the procedure,

unless there are exceptional circumstances that would make reduction or increase unjust or inequitable, in which case a reduction or increase of between 0% and 10% may be made.

The Employment Act 2002 also prevents employees from making a complaint to an employment tribunal about any action, or intended action, on the part of the employer if the employee has not set out the grievance in writing and sent it to the employer, as required by the "standard" and "modified" statutory grievance procedures (SGPs).

Statutory grievance procedures
The standard SGP applies in relation to any grievance about which the employee could make a complaint to an employment tribunal. Examples of actions, or intended actions, over which employment tribunals have jurisdiction are

• discrimination in the employment field
• detrimental treatment in connection with trade union membership, activities or rights
• unauthorised deductions from wages
• unfair dismissal and action short of dismissal
• detrimental treatment in relation to the national minimum wage.

• the employee has ceased to be employed by the employer, and
• the employer was either
  • unaware of the grievance before the employment ceased, or
  • aware of the grievance but the standard grievance procedure was not commenced or was not completed before the last day of the employee's employment; and
• the parties have agreed in writing, after the employer became aware of the grievance, that the modified procedure should apply.

• the employee is no longer employed, neither procedure has been commenced, and it is no longer reasonably practicable for the employee to set out the grievance in writing and send it to the employer
• the grievance is that the employer has dismissed or is contemplating dismissing the employee
• the grievance is that the employer has taken, or is contemplating taking, disciplinary action against the employee unless one of the reasons for the grievance is
  • that the disciplinary action would amount to unlawful discrimination, or
  • that the grounds for the employer's action are unrelated to the asserted grounds for the employer's action, and
    the employee sets out the grievance in writing and sends it to the employer before an appeal under an SDDP is heard or a complaint is made to an employment tribunal.

• the employee is no longer employed,
• the employee has set out the grievance in writing and sent it to the employer, but
• it is no longer reasonably practicable for the employer or the employee to comply with the remainder of the procedure.

Where the above situation applies and the employer has met with the employee to consider the grievance, the remainder of the procedure is only treated as having been followed if the employer informs the employee of the decision.

The standard or modified SGP is treated as having been followed if the employee raises a grievance under the provisions of a grievance procedure set out in a collective agreement.

General matters
Any of the statutory procedures are treated as having been followed if

• the employer or employee, as appropriate, has not followed the first stage of that procedure, or has followed the first stage but the procedure has gone no further, and
• any of the following situations applies:
  • either party has reasonable grounds to believe that commencing the procedure or complying with the subsequent requirement would result in a significant threat to himself, his property, any other person or the property of any other person,
  • either party has been subjected to harassment and has reasonable grounds to believe that commencing the procedure or complying with the subsequent requirement would result in being subjected to further harassment, or
  • it is not practicable for either party to commence the procedure or comply with the subsequent requirement within a reasonable period.

However, where either of the first two of the above situations applies, the failure of the procedure is attributable to the party responsible.

Where, as the result of unforeseen circumstances, the employer, employee or employee's companion are unable to attend a meeting under a procedure, the employer must arrange a further meeting to suit all of the parties. The requirement is treated as having been followed if the employer has arranged two meetings and the employee has been unable to attend both.

The Regulations are due to be brought into effect from 1 October 2004.

Source: www.hmso.gov.uk/si/si2004/draft/20048455.htm