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No more statutory dismissal or grievance procedures!

Posted on 12th March 2009
Briefing note

From 6 April 2009 a new approach to dealing with employee discipline, dismissals and grievances comes into force. The much criticised and unworkable statutory dismissal, disciplinary and grievance procedures are completely repealed. Details about the changes are explained below.

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Simon Quantrill Simon
Managing Partner Telephone: 01473 688100

Everything is changing!

Employment Act 2008 | what is changing?

In a word, everything! For those of you who have spent the last four years grappling with the technicalities of the statutory dismissal and disciplinary procedures or trying to identify the next employee grievance, you will be delighted to know about the following:

  • Repeal of the statutory dismissal and grievance procedures (contained in sections 29 to 33 and Schedules 2 to 4 Employment Act 2002). This means no more prescriptive step 1 letters, step 2 meetings etc.
  • No more automatic unfair dismissals for any technical breach of the statutory dismissal and disciplinary procedures regardless if the breach made any difference to the outcome.
  • Abolition of the mandatory uplifts on compensation awards of between 10% and 50%. Tribunals will have discretion to increase or decrease compensation awards by up to 25% for unreasonable failure to follow the new Acas Code.
  • Repeal of section 98A Employment Rights Act 1996 in relation to procedural unfairness and the reintroduction of the pre-2004 Polkey v A E Dayton Services Ltd [1997] case law. This means if an employer fails to comply with its disciplinary procedure, the dismissal will be held to be unfair, even if the failure would not have affected the outcome. (The merits of the dismissal as opposed to the fairness of it will still be reflected in the amount of compensation to be awarded. Compensation will be reduced to reflect the likelihood that dismissal would have occurred in any event and/or if the employee contributed to his or her dismissal by their actions).
  • The three months extensions available if statutory procedures are being followed plus "old" extensions of time go. This means that an employee will have only three months from the effective date of dismissal to bring a claim of unfair dismissal. Employees can still seek to rely on "reasonably practicable" and "just and equitable" extensions of time in appropriate cases.
  • Employees will no longer have to submit a grievance and wait at least 28 days before starting a claim of discrimination or other statutory claim in the employment tribunal. Currently, employees who breach this rule find that the employment tribunal simply does not have the power to hear the claim. This consequence led to a large number of arguments about what in law amounted to a statutory grievance - "spot the grievance" became an occupational hazard for many employers!
  • There will be no need to hear grievances from ex-employees and no need to try and work out the complex distinctions between modified and standard grievance procedures.

In practice

Employers should look forward to a less complex and technical future when dealing with employee discipline and work performance issues. It would be too easy to say "we told you so" but given government has ditched the entire provisions of the Employment Act 2002 this is a pretty good sign that they appreciate how wrong they got things with the statutory dispute resolution procedures. This is not to say the new Acas Code will not have its own problems but life should be simpler after 6 April 2009 when dealing with the majority of cases.

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