What are the main pitfalls employers have faced since statutory disciplinary, dismissal and grievance procedures were introduced last year? Emma Bartlett tells you what to watch out for
The statutory dispute resolution procedures introduced in October 2004 are having the desired result: employers and employees are trying to resolve disputes before going to court. Yet, the procedures are an enigma to many. Here are the main pitfalls.
Statutory grievance procedures
What is a grievance? This is defined as ‘a complaint by an employee about action which his employer has taken or is contemplating taking in relation to him’. ‘Action’ is defined to include ‘any act or omission’. A narrow interpretation of ‘action’ will not avoid responsibility for complying with the grievance procedures
Failure of an employee to raise grievance before commencing claim – In Noskiw v Royal Mail Group plc, the tribunal dismissed an application for disability discrimination from Noskiw because he failed to raise a statutory grievance before bringing his claim. Even though prior to his claim Noskiw had complained by e-mail about his pay review, his e-mail did not refer to disability discrimination, so he had not complied with the statutory grievance procedure
Failure by employer to recognise grievance – In Aspland v Mark Warner Limited, the employer contested the tribunal’s jurisdiction to hear Aspland’s claim because he had not raised a grievance. However, it concluded that a letter before action written by his solicitors constituted a grievance, and allowed the claim to proceed.
If you, as an employer, fail to recognise when a grievance has been made, you could have to pay compensation, enhanced by up to 50%. Any written complaint could constitute a statutory grievance.
You must respond to a grievance without unreasonable delay. Failure to recognise the grievance may result in such a delay and breach the statutory grievance procedure
Constructive dismissal claim exempt from grievance procedure – In Cooke v Secure Move Property Services Limited, the tribunal concluded that Cooke did not need to raise a grievance and wait 28 days before commencing his claim for constructive dismissal because his resignation was within two statutory exemptions: that the employer was contemplating dismissal and disciplinary action. Even if the grievance procedure had applied, due to the short definition of a statutory grievance, Cooke’s e-mailed resignation reacting to his suspension for gross misconduct would have been sufficient.
Statutory disciplinary and dismissal procedures
Failure to implement statutory procedures for employees with less than 12 months’ service – Be careful how you dismiss employees with less than a year’s service. If you fail to follow the statutory disciplinary and dismissal procedures, compensation could increase by 10-50% in claims other than unfair dismissal. These include breach of contract, equal pay, unlawful discrimination, unauthorised deductions from wages, detriment in relation to trade union membership and in employment (eg, leave for family, or whistleblowing)
Treatment pre-dismissal – If unfair treatment of an employee pre-dismissal causes psychiatric illness, the employee can seek damages, according a decision by the House of Lords. Employees in Eastwood and Williams v Magnox Electric plc and McCabe v Cornwall County Council are seeking damages for the employers’ conduct pre-dismissal in relation to disciplinary proceedings
Failure to implement procedure for non-disciplinary dismissals (eg redundancy) – As part of the redundancy process, you should include a warning letter giving the relevant information, a meeting and the right of appeal if dismissed – a statutory right since October 2004. The Polkey principle still applies: if the employer had a fair reason to dismiss, but the procedure was unfair, provided the employer can show that a fair procedure would have had little or no impact on the decision, compensation for unfair dismissal can be reduced by up to 100%
Failure to provide full information pre-dismissal – Although this can be corrected on appeal, you should not be afraid to provide employees with all the information relevant to the dismissal under the disciplinary and dismissal procedures before the hearing. An employee’s initial reaction to allegations can still be obtained in the investigatory stage before the hearing.
Conflict of interest in police enquiries
If one of your employees faces criminal charges, the police may ask you to suspend the employee on full pay and to delay internal proceedings until they have completed their enquiries. This may increase your costs and it also risks the procedure being potentially unfair because of the delay. Nevertheless, make sure you keep the employee informed of the reason for the delay.
If the police investigation is dropped, you need only be satisfied on a ‘balance of probabilities’ that the employee committed the alleged offence. This is a lower threshold than the burden of proof required by the police, ‘beyond all reasonable doubt’. In Harding v Hampshire County Council, the Employment Appeal Tribunal concluded that it was reasonable to dismiss based solely on police evidence, even though criminal proceedings were dropped.
Appeals
Acas guidelines give no time limit for raising appeals, even if an employer’s procedures stipulate one.
Emma Bartlett is a solicitor with City law firm Speechly Bircham
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