Q If a disciplinary or grievance procedure was begun before the new laws came into force on 1 October 2004, do the new statutory procedures apply?
A No. While the new grievance procedure may apply to a grievance concerning action that took place before 1 October, it will do so only if the action complained of continues after 1 October, and the employee did not raise the grievance before this date.
The new dismissal and disciplinary procedure applies in only those cases where the employer first contemplates dismissing or taking disciplinary action on or after 1 October.
Q Must an employer comply with the dismissal and disciplinary procedure when issuing a disciplinary warning?
A No. Controversially, employers need not comply with the new statutory dismissal and disciplinary procedure when issuing a warning. Employee representatives have criticised this thinking, on the basis that disciplinary warnings are the most common type of disciplinary action.
Q Does the submission of a discrimination questionnaire count as an initiation of the grievance procedure?
A No. Individuals who have reason to believe that they are subject to unlawful discrimination on the basis of sex, sexual orientation, religion or belief, race or disability may serve a questionnaire on their employer requesting further information, as may those considering an equal pay claim. However, regulation 14 of the Employment Act 2002 (Dispute Resolution) Regulations 2004, specifically states that this will not count as an initiation, or step one, of the grievance procedure.
Q What is the position if an employee cannot attend a meeting arranged to discuss the disciplinary or grievance issue?
A If it is not reasonably practicable for the employee, or his or her companion where the employee is exercising the right to be accompanied, to attend the meeting for a reason that was not foreseeable when the meeting was arranged, the employer will be under a duty to rearrange the meeting. The employer is not obliged to organise more than two meetings, so if the employee fails to attend both meetings, the employer need not organise a third.
Q Who can accompany an employee to a hearing?
A The Employment Relations Act 1999, section 10, gives workers a right to be accompanied to disciplinary and grievance hearings by a fellow worker or trade union official. An employer does not have to allow a legal adviser to be a companion.
The companion has the right to address the hearing to put the worker’s case, sum up the case and respond on the worker’s behalf to any view expressed at the hearing. They may also confer with the worker during the hearing. However, the employer is not required to permit the companion to answer questions on behalf of the worker or address the hearing where the worker indicates that they do not wish the companion to do so. In addition, the companion may not use their rights to address the hearing and confer with the worker in a way that prevents the employer explaining its case or stops any other person making a contribution to the hearing.
Q Which procedure applies when a grievance concerns a disciplinary action or a dismissal?
A Only one of the new statutory procedures may be used.
Where a grievance concerns a dismissal or disciplinary action other than a warning or suspension on full pay, in general the employee should appeal under the disciplinary procedure. They should not raise a grievance under the statutory grievance procedure, except in circumstances where the employee’s grievance is that the disciplinary action amounts to unlawful discrimination, or that the employer’s grounds for taking the action are unrelated to its asserted grounds.
In such circumstances, the employee should send a written statement of the grievance to the employer before the disciplinary appeal hearing.
By Rachael Wright, senior associate, Osborne Clarke