Disciplined approach to solving disputes is vital

From 1 October 2004, employers and employees will have to at least try to
resolve workplace disputes using statutory procedures on discipline and
grievances

The DTI has recently consulted on procedures relating to workplace disputes
and regulations specifying the detailed application of them are due in 2004.

The statutory dismissal and disciplinary procedure (DDP) and statutory
grievance procedure (GP) will each have a standard three-step process:

Step 1: written statement explaining the grounds for the proposed
dismissal/disciplinary action or the grievance

Step 2: Meet to discuss the issue

Step 3: Appeal, if required. Modified procedures, omitting step 2,
may be used in certain circumstances.

The standard DDP will apply to all dismissals except those that are
collective or constructive dismissals and gross misconduct cases. It will also
apply to action taken short of dismissal due to an employee’s conduct or
capability, such as suspension without pay, but will not apply to warnings.

The modified DDP can only apply after an employee has been dismissed because
of gross misconduct or where the employment cannot continue (for example, where
a lorry driver is disqualified from driving).

What if the employer has an honest but mistaken belief as to the employee’s
position? The availability of the modified DDP may encourage employers to
dismiss first and sort out problems later. Lack of clear guidelines as to when
it would be safe to use the modified DDP could result in some contradictory
case law.

Matters to which the GP will apply include investigatory suspensions,
warnings, and actions resulting in constructive dismissal. Confusion could
arise as to which statutory procedure should apply – appeals against suspension
and warnings normally being part of disciplinary procedures. The modified GP
will only apply where the employment has ended and either it is not reasonably
practicable for the parties to hold a meeting or where the parties agree to use
the modified procedure.

An employee cannot bring a grievance complaint to an employment tribunal
unless they have waited 28 days from issuing a step 1 letter. The time limit
for bringing the complaint may, in certain circumstances, be extended to six
months.

A party will be exempt from following the statutory procedure if the other
party has behaved violently, abusively or otherwise unacceptably, or the issue
is a collective one or it is not reasonably practicable to complete a
particular step. If the employee fails to attend a meeting, the employer need
only re-arrange it once. A dismissal will be automatically unfair if the
employer has failed to follow the statutory procedure. To ensure a dismissal is
procedurally fair, the employer will have to follow both the DDP and the Acas
Code of Practice on Disciplinary and Grievance Procedures, a revised version of
which, taking into account the statutory procedures, will come into effect in
October 2004.

Failure to follow the statutory procedure will result in any compensation
award being increased or reduced (depending on which party is at fault) by
between 10 per cent and 50 per cent.

Although the statutory procedures should result in a reduction in tribunal
cases, questions as to which procedure should have been used, whether the use
of a modified procedure was justified and whether an exemption applied will
have to be determined by tribunals.

The interaction of the DDP and GP, and the overlapping of those procedures
where there is a mixture of disciplinary and grievances issues, could well
cause confusion. It is hoped that the regulations and the revised Acas code
will clarify matters.

By Andrew Kaufman, Partner, Fladgate & Fielder
*Co-author David Hetherington, solicitor, Fladgate Fielder

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