ABOLITION OF STATUTORY DISPUTE RESOLUTION

From April 2009 the existing law on dismissals and grievances is swept away and replaced by a new non-statutory regime.  Here Martin Brewer, Partner at Mills & Reeve LLP looks at what will replace it, how employers should respond and the importance of investigating workplace incidences.

In 2004, in an attempt to try to limit the spiralling number of employment tribunal claims the government introduced statutory dispute resolution into the workplace creating a statutory dismissal procedure (SDP).  That proved to be less than successful and has now been abandoned.  Instead a re-vamped ACAS Code of Practice has been developed to replace the statutory regime with effect from 6 April 2009. 

There are transitional provisions governing whether the new or old regime applies to any ongoing procedures.  Essentially the old statutory regime will continue to apply where the employer has dismissed an employee or taken relevant disciplinary action before 6 April 2009. It will also apply where the employer has sent the employee a "step 1" letter or held a "step 2" meeting under the SDP before that date.  However, in any other case (including where the SDP would not have applied anyway), the new regime will apply from 6 April 2009.

The SDP applies to dismissal for nearly any reason but the new ACAS Code only applies to "disciplinary situations", which includes misconduct and poor performance but redundancy and the non-renewal of a fixed-term contract. 

The Code is supplemented by a guide to best practice which contains useful information developed from unfair dismissal case law.  The Code will be taken into account by employment tribunals and failure without good reason to follow the Code may give rise to an adjustment in compensation of up to 25%.

FIVE REQUIRED STEPS IN A DISMISSAL PROCESS UNDER THE CODE

So what are the essential steps under the new regime?

1. Investigate

It is an important principle that prior to issuing a warning or dismissal an employer should carry out a reasonable investigation, and this is reflected in the Acas Code. This may involve investigatory meetings with the employee under investigation or it may simply involve the collation of other evidence. Any investigatory meeting should not result in disciplinary action without a disciplinary hearing. Depending on the circumstances you may wish to use the services of a specialist investigation service if you do not have the appropriate investigation skills in-house.

2. Inform the employee of the issues in writing

Before any hearing, the employee must be notified in writing of the alleged misconduct or poor performance in sufficient detail to enable them to respond at a hearing and advised of the possible outcome (including, where appropriate, the risk of dismissal).  Any written evidence which is going to be relied upon, including witness statements, should be provided to the employee beforehand.

The employee must be told of the time and place of the hearing which should be held without unreasonable delay following the investigation and It should set out the employee's right to be accompanied to the hearing.

3. There must be a hearing

Action concerning misconduct or poor performance should not be taken without a hearing or meeting.  Managers, employees and their companions should make every effort to attend the meeting.  If the employee is persistently unable or unwilling to attend without good cause, the employer should make a decision on the available evidence.  Either side should give advance notice of any witnesses they intend to call.

At the hearing: the allegations should be explained and the evidence gone through.  In particular:

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

 

4. Inform the employee of the decision in writing

Following the hearing, the employer's decision should be sent to the employee in writing without unreasonable delay.

Written warnings should set out the nature of the misconduct or poor performance, the improvement required, and the timescale for improvement. They should also specify how long they will remain current, and the consequences of further misconduct (or failure to improve) within that period.

5. The right of appeal

If the employee feels the disciplinary action against them is unjust, they should appeal in writing, specifying the grounds of their appeal. If they bring a tribunal claim without appealing, any compensation they are awarded may be reduced.

The appeal should be heard without delay, ideally at an agreed time and place, and should be conducted impartially by a manager who (where possible) has not been previously involved. The employee can bring a companion to the appeal hearing.

WHAT SHOULD EMPLOYERS DO NOW?

Hopefully employers already follow good practice but the key points are:

  • Manage conduct and performance issues in a way that attempts to avoid the need for a formal process
  • In any formal process make sure there is a thorough investigation.  This is the bedrock of a fair process
  • Always hold a disciplinary hearing and allow the employee to put their case before making any decision.
  • Keep written records of the procedure followed and minutes of all hearings/meetings.
  • Give prompt, full, reasoned written decisions.

 

Written and submitted by Martin Brewer, Partner, Mills & Reeve LLP for Expert Investigations Ltd
(www.mills-reeve.co.uk)