No Bull ! Bulletin - Employment

General

• Clear disciplinary procedures assist with efficient business management and provide a means to resolve differences between employer and employee.
• As a reflection of this, and to try and reduce the number of claims brought in employment tribunals, compulsory disciplinary (and grievance) procedures have been introduced.
• From 1 October 2004 employers must apply the statutory procedures. Other procedures can only be used where they are additional to, and consistent with, the statutory models.
• As yet the procedures are not implied terms of employment contracts, but the statutory power to bring that about is likely to be exercised in the next few years.

An overview of the statutory procedures

There are two procedures:

• A 'standard' three-stage procedure An expedited modified procedure.
• The Government may amend the procedures after consultation with ACAS.
• The 'statement of particulars of employment' that employers are required to give to employees must include details of the procedures.
• There is no qualifying period of employment. They apply to all employees.
• Failure to follow the applicable procedure will result in a dismissal being automatically unfair, and compensatory awards can he increased or decreased. The time limit for lodging a complaint of unfair dismissal will, in certain cases, be extended by up to three months.

Common features of the procedures

• The steps that must be taken under them must be carried out without unreasonable delay.
• The timing, and place, of meetings that are required to be held must be reasonable.
• The conduct of meetings must allow both employer and employee to explain their cases.
• As far as reasonably practicable, appeals should he to persons more senior to original decision-makers.
• Any attempt to exclude the provisions of the Act whether directly or indirectly will fail. However there are 'common sense' exceptions. For example; unacceptable behaviour that makes it unreasonable to expect the other to go through the relevant procedure.

The expedited procedure

It only applies when an employee has been fairly dismissed for gross misconduct.

The steps are:

Step 1

The employer sends a written statement to the former employee setting out:

• the alleged misconduct that led to the dismissal
• details of the basis for concluding that the former employee was guilty of the alleged misconduct confirm the right of appeal.

Step 2

Appeal

• If the former employee wants to appeal he should tell the employer
• If an appeal is made the employer should organise a meeting, which the former employee must take all reasonable steps to attend
• After the meeting the former employee must be informed of the decision.

The standard procedure

• This applies to all disciplinary action, other than the expedited procedure described above. That includes circumstances of discipline short of dismissal.
• The steps are:

Step 1

The employer sends a written statement to the employee setting out:

• the alleged conduct/circumstances ('the grounds') that led to the action
• details of the basis for concluding) the grounds for bringing the action.

Step 2

Before a disciplinary action is taken (except for suspension):

• a meeting must be held (the employee must take all reasonable steps to attend)
• after the meeting the employer must inform the employee of the decision and notify him of the right to appeal.

Step 3

Appeal:

• if the former employee wants to appeal he should tell the employer
• if an appeal is made the employer should invite him to a meeting- (the appeal meeting does not have to take place before the disciplinary action takes effect) the employee must take all reasonable steps to attend the appeal meeting
• after the meeting the employer must inform the employee of the decision.

Compliance, complaints & compensation

• In cases of dismissal, if the appropriate procedure has not been followed and the employee has enough qualifying service, the dismissal is automatically unfair.
• In all cases of disciplinary action (including dismissal (above)), where an employment tribunal concludes that the statutory procedure should have been followed but was not, it must reduce or increase an award by no less than 10%.
• It can reduce/increase awards by up to (but not more than) 50%. Any reduction or increase depends on who was at fault for the failure to follow the procedure.

Conclusions

• Employers should use the expedited procedure at their peril. A tribunal may not agree that the dismissal is justified, in which case it is automatically unfair.
• It would be better to suspend an employee (without pay if the circumstances permit), if the contract allows it, and adopt the standard procedure.
• The procedures are an advantage, not a threat, to employers effectively managing disciplinary issues.

For further information please contact Russell Davidson at:

Davidson Webber LLP
Royal House
110 Station Parade
Harrogate
HG1 1EP

Telephone: 01423 727272
Facsimile: 01423 727200

You should take professional advice about any particular situations or problems. As this guide is only a very brief outline, intended to alert users to the principal provisions of the legislation, Davidson Webber cannot accept any responsibility for any inaccuracies in or reliance upon this guide.