Old and new dispute resolution rules: legal dilemma

Q I have just heard that on the 6 April the statutory dispute resolution procedures will change. I may need to dismiss an employee towards the end of March or beginning of April. Would we have to put these procedures into effect or stick with the Employment Act 2002 (Dispute Resolution)? Could the employee in question, should he become aware of the changes, ask for his case to be stayed until after 6 April?

A You are right that the statutory dispute resolution procedures under the Employment Act 2008 will be repealed on 5 April 2009. They will be replaced by a new Acas Code of Practice on Discipline and Grievance Procedures. The code provides for non-compulsory uplifts and reductions to tribunal awards. Under the code, tribunals are entitled to order an uplift of up to 25% where the employer is responsible for a failure to follow the code and a reduction of 25% where the employee is responsible for a failure.

Major changes in employment law are often accompanied by transitional provisions dealing with cases that, for example, are ongoing when the changes take effect. In this case of the repeal of the statutory dispute resolution procedures, the transitional provisions confirm that the ‘old’ three-stage disciplinary procedure will apply in cases where, on or before 5 April 2009, an employer has done one or more of the following: disciplined or dismissed an employee sent an employee a step-one letter or held a step-two meeting.

The step-one letter is the document in which the employer is required to “set out in writing the employee’s alleged conduct or characteristics, or other circumstances, which lead him to contemplate dismissing or taking disciplinary action against the employee”. Therefore, in your case, if you want to make sure the case falls to be dealt with under the ‘old’ three-stage disciplinary procedure you can do this by sending the employee the step-one letter in good time prior to the date that the law changes. Provided you have done so, if the employee requests a stay of the other stages of disciplinary procedure until on or after 6 April 2009 and you agree, this will make no difference – the ‘old’ three-stage disciplinary procedure will continue to apply.

David Brown, associate, Simpson Millar

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