p.22-23 talking shop 11:FOOTWEAR NEW TEMPLAT 10 08 10/11/09 09:45 Page 22
Talking Shop
Are you ready for key change
in dismissal laws?
GARETH EDWARDS
A
new discipline and grievances regime took effect in April 2009, fol- dealing with disciplinary and grievance issues. Employment tribunals will
lowing the enactment of the Employment Act 2008, and employers have regard to what is "fair and reasonable" when deciding cases, and in
who fail to follow a new Code of Practice relating to disciplinary doing so will consider whether the employer has followed the principles
and grievance procedures will be liable to pay more compensation. set out in the Code.
In order to avoid findings of unfair dismissal and increased awards for The code can be seen here:
damages, employers need to make sure that they have got to grips with http://www.acas.org.uk/index.aspx?articleid=2174.
the changes to the law sooner rather than later.
Will the code apply to all dismissals?
Why are there more changes in this area? The Code will not apply to dismissals on the basis of redundancy or the
Since October 2004 employers have had to grapple with the statutory non-renewal of fixed-term contracts on their expiry.
dispute resolution procedures which imposed minimum standards on
employers when dealing with disciplinary and grievance issues. The How should employers deal with disciplinary issues?
procedures were introduced with a view to encouraging employers There is no prescriptive definition of a disciplinary situation and it is
to resolve disputes in the workplace but completely failed to achieve clearly for the employer to determine when they take issue with an
this aim. employee's conduct. The Code anticipates dealing with issues relating to
The Government commissioned an independent review of the poor performance and misconduct but makes the point that some
procedures (the Gibbons Review), which found that although the employers may have separate policies to deal with certain types of
statutory procedures encouraged early resolution of disputes in some conduct, such as poor performance and harassment issues. If this is the
cases, they had created a high administrative burden with unintended case, an employer will need to make sure that those policies observe the
negative consequences. In many cases lawyers had become involved at an minimum requirements of the Code.
early stage in the dispute and too often a "one size fits" all solution The Code sets out key principles which will need to be applied fairly by
had been imposed. an employer and the requirements for a fair process:
The procedures have certainly been responsible for a host of Employ-
ment Appeal Tribunal decisions as all concerned have tried to get to
•
Employers are responsible for carrying out any investigations necessary
grips with the minimum requirements. The Employment Appeal Tribunal to establish the facts of the case. If it is appropriate to suspend the
expressed the view that the regulations seemed to be more likely to make employee whilst the investigation is ongoing then any period of
lawyers money than to resolve disputes. suspension should be as short as possible;
•
Employers should inform employees of the cause of the problem and
What has replaced the Statutory Procedures ? provide them with an opportunity to put their case in response before
Both the statutory dismissal procedures and grievance procedures have any decisions are reached;
gone. Employers are now encouraged to comply with the newly revamped
•
The Code repeats details of an employee's statutory right to be
ACAS Code of Practice on Disciplinary and Grievance Procedures. accompanied where employers should allow employees to be
Tribunals will have regard to the Code when hearing cases involving accompanied at any formal disciplinary meeting;
disciplinary and grievance issues.
•
Following the meeting employers must decide whether any disciplinary
action is justified and inform the employee in writing of the decision;
What are the objectives of the new Code?
•
Employers should allow employees to appeal against any formal
The Code sets out key principles and is not a substitute for the employer decision; and
having their own disciplinary and grievance procedures. It is important
•
Notify the employees in writing of the outcome of an appeal hearing.
that employers have clearly set out procedures. When issuing terms and
conditions to an employee, an employer is required to specify the What is a grievance?
disciplinary and grievance procedures that apply to the employee or The Code simply states that grievances are concerns, problems or
to inform employees where the documents can be located (such as complaints that employees raise with their employers.
in a company handbook). Failure to do so can lead to compensation
being paid to an employee. The Code will provide guidance on what How should employers deal with grievance issues?
is expected from an employer (and an employee) in situations where a dis- Again, the Code provides general guidance on what an employer is
ciplinary issue or grievance arises. The Code stresses the need for required to do when dealing with a grievance:
fairness and transparency and the use of rules and procedures when If it is not possible for the employee to resolve the grievance informally,
22
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FOOTWEAR TODAY
•
NOVEMBER/DECEMBER 2009
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