By Michelle Bevan, associate solicitor in the employment
department at Bevan Ashford
Q I understand that disciplinary and grievance procedures
will become compulsory from April 2004. As an employer, what should I be doing
to prepare for this change?
A The Employment Act 2002 provides for statutory
disciplinary and grievance procedures to be implied into all contracts of
employment, regardless of the length of service.
The Government has not yet decided the actual implementation
date, but the changes are likely to come into effect in April 2004. The draft
regulations have not yet been published, so the fine detail of the procedures
is not yet known.
You will need to review your existing procedures to ensure
they cover the new statutory procedures as a minimum. If you do not have
procedures in place, you will need to implement some to comply with the
statutory ones.
If clauses in your existing contracts suggest the
disciplinary and grievance procedures are not part of the contract, they will
need to be amended in light of the proposed changes.
You will also have to follow the proposed procedures for
workers with less than a year’s service. If you fail to do so, the employee
could be entitled to bring a claim against you for breach of contract.
Q What is contained in the new procedures?
A The disciplinary procedures provide that the employer must
inform the worker in writing of the allegations made against them and of all
relevant evidence.
There are two types of procedure: standard and modified. A
modified procedure is likely to apply where a dismissal occurs immediately –
for example, on grounds of gross misconduct.
If a worker wishes to invoke the grievance procedure, they
must do so in writing. The employer must then hold a meeting with them to
discuss the grievance, and the worker must have the right of appeal. There is
also a modified procedure that can be used by former employees.
Q What happens if I don’t follow the procedures?
A If the appropriate disciplinary procedure is not followed,
wholly or mainly due to the fault of the employer, then a finding of automatic
unfair dismissal is likely to be made by the employment tribunal. This will
attract a minimum award of four weeks’ pay, and only applies to staff with more
than 12 months’ service.
If the employer or worker does not comply with the statutory
procedure, the employment tribunal will have the discretion to raise or reduce
any award it makes between 10 and 50 per cent if considered “just and equitable
in all the circumstances”.
Q Why is the Government taking so long? Weren’t the
procedures to come into effect in April 2003?
A Through the DTI, the Government recently announced that
implementation will be postponed until April 2004.
This will enable a consultation process to take place this
summer, with bodies such as Acas, the Small Business Service and other advisory
groups.
It is likely that Acas will then revise their disciplinary
and grievance procedures code, which will form the backbone of the Government’s
regulation changes.
