Government must tread warily on grievance law

Proposals for dispute resolution procedures seem to indicate
the Government has not grasped the implications of UK case law and the EU’s
harassment practice code

New proposals published by the Government setting out how
dispute resolution procedures will operate in practice may well create more
problems than they solve if they are implemented in their current form.

The Employment Act 2002 established statutory minimum dismissal and
grievance procedures (SDPs and SGPs) aimed at getting employees to sort out
problems with employers in the workplace, rather than at an employment
tribunal.

The Government wants the procedures in place by October 2004. Key proposals
include:

– A standard three-step process for both grievance and disciplinary procedures
comprising a written complaint, an initial meeting and, if necessary, an appeal
meeting

– A modified two-step process for both grievance and disciplinary
procedures, consisting of a written complaint by either party and an appeal
meeting

An example of when this would apply would be in ‘exceptional situation’
gross misconduct cases where instant dismissal would be fair.

If either party has not completed the relevant procedure, the tribunal can
increase or decrease the compensation by between 10 and 50 per cent.

The Government also sets out exemptions when the statutory procedures need
not apply:

– Where one party acts in a violent, abusive or unacceptable manner.
Examples given are a threat of harm or where one party has been subjected to
harassment

– Factors beyond the control of either party making it impossible to proceed
for the foreseeable future. The Government believes this could include
long-term ill-health, incapacity, or the immediate closure of a business.

The proposals are already provoking criticism for being too complex and in
conflict with the Acas code of practice dealing with disciplinary and grievance
issues. Indeed, there are certain indications in the consultation document that
the Government has either failed to understand, or is effectively trying to
re-write the law of unfair dismissal.

When outlining the circumstances where the Government believes an employer
has no choice but to dismiss without delay, the example is given of a bus
driver losing their licence, yet case law dictates that a reasonable employer
would look for alternative employment in such circumstances.

Long-term ill-health is given as an example of a situation where employers
will not be required to follow an SDP, yet the well established principles of ‘reasonableness’
require obtaining a medical opinion, consultation, consideration of alternative
work and/or reasonable adjustments where disability is concerned.

The Government also believes procedures need not apply in harassment cases.
An argument has been advanced that requiring employees to raise a formal
grievance in such circumstances may weaken the level of protection already
provided. But it is difficult to see how this can be the case when the
‘exemption’ conflicts with the European Commission code of practice on sexual
harassment, which recommends employers provide employees with informal and
formal complaint mechanisms to halt unacceptable behaviour.

Having formulated the procedures, it seems the Government is now trying to
figure out how to use them, when it should be the problems dictating the
solutions.

Being prescriptive about ‘utterly futile’ situations where no consultation
is needed before dismissal or allowing harassment claims to proceed without any
formal attempt to resolve the problem in-house are just two examples of the
dangerous path the DTI is treading.

www.dti.gov.uk

By Makbool Javaid, Employment partner, DLA

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