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Consultation on statutory dispute resolution procedures
The Employment Act 2002 (Schedule 2) ("the Act") introduced statutory minimum dismissal procedures and disciplinary and grievance procedures. The legislation is intended to provide an incentive for employers and employees to resolve problems through dialogue, particularly where such procedures have not previously existed or been used, and, as a result, forestall legal action. The provisions have not yet been brought into force.
The way in which the statutory procedures are to be applied will be defined in the Employment Act 2002 (Dispute Resolution) Regulations which will be introduced following detailed consultation with interested parties.
There are two different sets of procedures defined in the Act, a standard procedure and a simple, modified procedure. A summary of the procedures is available at www.dti.gov.uk/er/individual/dis_res_sumdoc.htm .
It is proposed that the standard procedures will apply
- where an employer wishes to dismiss an employee or take action against an employee on grounds of conduct or capability, or
- where an employee wishes to complain about any action by an employer, apart from actions which fall within the dismissal and disciplinary procedure.
In contract, it is proposed that the modified procedure will apply
- where the action is a dismissal necessitated by circumstances outside the control of the employer, or an immediate "gross misconduct" dismissal in the kind of highly exceptional conditions where such a dismissal would be found to be fair by an employment tribunal, or
- where the employment has already ended and either it will not be reasonably practical for one or other of the parties to use the standard procedure or both parties agree in writing to use the modified procedure.
Failure to follow the statutory procedures may impact employment tribunal applications. If the employer has dismissed an employee but has not followed the procedures, the dismissal will be automatically unfair. If the employee has not written to the employer prior to making a tribunal complaint, the complaint will not be admissible. If either party has not completed the relevant procedure, the tribunal must increase or decrease the compensation by 10%, depending on which party is at fault, and may do so by up to 50%.
Neither party will be required to follow the statutory procedures in any of the following situations:
- the other party is violent, abusive or behaves in an unacceptable way#
- factors beyond the control of either party make it effectively impossible for the procedure to be followed
- in circumstances where the modified dismissal procedure would apply, the employee makes an employment tribunal complaint about the dismissal before the employer has issued the Step One letter
- the issue is being discussed "collectively"
- the employee applies for "interim relief", or
- to do so would require the disclosure of information contrary to the interests of national security.
The time limits associated with employment tribunal applications will be extended in certain circumstances to allow extra time for the statutory procedures to be completed.
When a workplace dispute concerns a number of overlapping issues, one or other of the statutory procedures will apply in relation to each specific action that the employer takes or wishes to take, just as it would if that were the only action in dispute. However, any letter sent between the parties, and any meeting that takes place between them, can potentially fulfil a step under the statutory procedures, regardless how many or what type of subjects it covers in addition to the specific action in question.
The legislation provides powers for the Government to make the dispute resolution procedures an implied term of all employment contracts. These powers will not initially be brought into force; rather the Government intends to wait to see how implementation of the procedures works in practice.
A range of related questions are raised in the consultation paper about the proposals. Responses are invited with a deadline of 29 October 2003.
(Source: www.dti.gov.uk/er/individual/DRcondoc.pdf )
...back to 22 August 2003
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For Payroll and Human Resource Professionals
