The Employment Act 2008 – The Employment Act 2008 – A Critical OverviewA Critical Overview

Dispute Resolution & Tribunal Dispute Resolution & Tribunal Procedures: Overview of the New Procedures: Overview of the New

ProceduresProceduresIER Conference 2009IER Conference 2009

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Summary of the changesSummary of the changes

Previous procedures will be repealed from Previous procedures will be repealed from 6 April 20096 April 2009

No automatically unfair dismissalNo automatically unfair dismissal Failure to lodge grievance does not Failure to lodge grievance does not

prevent a claimprevent a claim ACAS Code of Practice sets out basic ACAS Code of Practice sets out basic

minimum standards for employers & minimum standards for employers & employees to resolve disputes in the employees to resolve disputes in the workplaceworkplace

Summary of the changes Summary of the changes cont’dcont’d

Potential for uplift or reduction in Potential for uplift or reduction in compensation of 25% depending compensation of 25% depending upon compliance or otherwise with upon compliance or otherwise with the ACAS Code the ACAS Code

No extensions to time limits – key No extensions to time limits – key lesson for TUslesson for TUs

ACAS Code of Practice ACAS Code of Practice

No mandatory “3 step” procedures for No mandatory “3 step” procedures for dismissals or grievances;dismissals or grievances;

TULRCA amended so that failure to follow TULRCA amended so that failure to follow ACAS Code of Practice may result in uplift ACAS Code of Practice may result in uplift or reduction to compensationor reduction to compensation

Both employers and employees have Both employers and employees have duties under the Code of Practiceduties under the Code of Practice

Code pdf at Code pdf at http://http://www.acas.org.uk/CHttpHandler.ashx?idwww.acas.org.uk/CHttpHandler.ashx?id=1041=1041

ACAS Code of Practice ACAS Code of Practice cont’dcont’d

Code supplemented by Guidance Code supplemented by Guidance http://http://www.acas.org.uk/CHttpHandler.ashx?idwww.acas.org.uk/CHttpHandler.ashx?id=1043=1043

Applies to conduct and capability Applies to conduct and capability dismissalsdismissals

Applies to all non-dismissal claims for Applies to all non-dismissal claims for which it was previously necessary to which it was previously necessary to raise a grievance, i.e. most non-raise a grievance, i.e. most non-dismissal claimsdismissal claims

General RequirementsGeneral Requirements

Issues should be raised and dealt with promptlyIssues should be raised and dealt with promptly Parties should act consistentlyParties should act consistently Employers should carry out necessary Employers should carry out necessary

investigations to establish factsinvestigations to establish facts Right to be accompanied to meetings Right to be accompanied to meetings Appeal procedures should be made available and Appeal procedures should be made available and

usedused Where grievance raised during disciplinary Where grievance raised during disciplinary

process, employer may suspend to deal with process, employer may suspend to deal with grievance or deal with both at same time if grievance or deal with both at same time if appropriateappropriate

Dismissals – Employer Dismissals – Employer responsibilitiesresponsibilities

Carry out investigations and hold meetings Carry out investigations and hold meetings without delaywithout delay

Keep suspension periods as brief as possibleKeep suspension periods as brief as possible Notify employee in writing of the case against Notify employee in writing of the case against

them and possible consequences as well as them and possible consequences as well as time and venue for disciplinary meetingtime and venue for disciplinary meeting

Provide copies of any written evidence Provide copies of any written evidence including witness statements including witness statements

Dismissals – Employer Dismissals – Employer responsibilities cont’dresponsibilities cont’d

At the hearing, explain the complaint to the At the hearing, explain the complaint to the employee and give an opportunity to put caseemployee and give an opportunity to put case

Give employee a reasonable opportunity to ask Give employee a reasonable opportunity to ask questions present evidence and call witnesses. questions present evidence and call witnesses. Advance notice to be given of witnessesAdvance notice to be given of witnesses

Different people to carry out investigation, Different people to carry out investigation, disciplinary and appeal hearing where possibledisciplinary and appeal hearing where possible

Inform employee of any action in writing Inform employee of any action in writing

Dismissals – Employer Dismissals – Employer responsibilities cont’dresponsibilities cont’d

If dismissal, must give reasons for If dismissal, must give reasons for dismissal, termination date and right of dismissal, termination date and right of appealappeal

Where employee persistently unwilling or Where employee persistently unwilling or unable to attend, employer entitled to unable to attend, employer entitled to make decision on evidence availablemake decision on evidence available

Appeals to be heard without delay at an Appeals to be heard without delay at an agreed time and placeagreed time and place

Inform employee of outcome of appeal as Inform employee of outcome of appeal as soon as possible in writingsoon as possible in writing

Dismissals – Employee Dismissals – Employee responsibilitiesresponsibilities

Not unreasonably delay & make all Not unreasonably delay & make all efforts to attend meetings (and also efforts to attend meetings (and also consider “right to be accompanied” consider “right to be accompanied” provisions)provisions)

Notify employer in advance of any Notify employer in advance of any witnesses to be calledwitnesses to be called

In most situations, appeal in writing In most situations, appeal in writing against a decision that they consider to against a decision that they consider to be wrongbe wrong

Grievances – Employer Grievances – Employer responsibilitiesresponsibilities

Hold a formal meeting without delay Hold a formal meeting without delay Where possible, manager not involved Where possible, manager not involved with case should hear itwith case should hear it

Make every effort to attend the meetingMake every effort to attend the meeting Allow employee to explain grievanceAllow employee to explain grievance Adjourn and investigate if necessaryAdjourn and investigate if necessary Communicate decision in writing Communicate decision in writing

without unreasonable delaywithout unreasonable delay

Grievances – Employer Grievances – Employer responsibilities cont’dresponsibilities cont’d

Inform of right to appealInform of right to appeal Hear appeals without unreasonable Hear appeals without unreasonable

delaydelay Wherever possible have a different Wherever possible have a different

manager hear the appealmanager hear the appeal Communicate the outcome of the Communicate the outcome of the

appeal in writing without delayappeal in writing without delay

Grievances – Employee Grievances – Employee responsibilitiesresponsibilities

Try informal resolution first, + ASAPTry informal resolution first, + ASAP If matter can’t be dealt with informally, If matter can’t be dealt with informally,

raise the matter formally and without raise the matter formally and without unreasonable delayunreasonable delay

Put grievance in writing and set out nature Put grievance in writing and set out nature of the grievanceof the grievance

Make every effort to attend meetingsMake every effort to attend meetings Appeal if not satisfactorily resolved giving Appeal if not satisfactorily resolved giving

grounds of appealgrounds of appeal

Collective GrievancesCollective Grievances

Different arrangements apply Different arrangements apply for ‘collective grievances’for ‘collective grievances’ Code defines as: “grievances raised on Code defines as: “grievances raised on

behalf of two or more employees by a behalf of two or more employees by a representative of a recognised trade representative of a recognised trade union or union or other appropriate workplace other appropriate workplace representative”.. [not defined]representative”.. [not defined]

Collective Grievances cont’dCollective Grievances cont’d

Industrial prerequisites for a collective Industrial prerequisites for a collective grievancegrievance Issue common to a group of members Issue common to a group of members Authority from the group purported to Authority from the group purported to

grievegrieve Collective grievances should be raised in Collective grievances should be raised in

accordance with existing procedureaccordance with existing procedure No uplift/reduction in compensation!No uplift/reduction in compensation!

Dismissal and grievance Dismissal and grievance arising togetherarising together

A dismissal might give rise to a claim other A dismissal might give rise to a claim other than unfair dismissal (such as than unfair dismissal (such as discrimination)discrimination)

Alternatively there might be incidents of Alternatively there might be incidents of discrimination or other money claims discrimination or other money claims which are linked to dismissalwhich are linked to dismissal

Raise appeal and grievances in same letter Raise appeal and grievances in same letter and ask for them to be heard togetherand ask for them to be heard together

If grievance not linked to dismissal, send a If grievance not linked to dismissal, send a separate grievance letterseparate grievance letter

Time LimitsTime Limits

Extensions to time limits will no Extensions to time limits will no longer applylonger apply

All claims All claims mustmust be submitted within be submitted within primary limitation periodprimary limitation period

Try to lodge appeal or grievance well Try to lodge appeal or grievance well before submitting the claim if before submitting the claim if possiblepossible

Right to be AccompaniedRight to be Accompanied Provisions of S.10 Employment Relations Act Provisions of S.10 Employment Relations Act

1999 apply1999 apply Code explains but does not add to current Code explains but does not add to current

statutory proceduresstatutory procedures Right to be accompanied to grievance Right to be accompanied to grievance

and disciplinary hearingsand disciplinary hearings Right to have meeting rearranged within Right to have meeting rearranged within

5 working days if representative can’t 5 working days if representative can’t attendattend

Transitional ArrangementsTransitional Arrangements

““Old” dismissal/disciplinary procedures apply Old” dismissal/disciplinary procedures apply where Step 1 letter sent or Step 2 meeting where Step 1 letter sent or Step 2 meeting held or where dismissal /disciplinary action held or where dismissal /disciplinary action has taken place before 6 April 2009has taken place before 6 April 2009

““Old” grievance procedures apply where Old” grievance procedures apply where conduct giving rise to grievance is completed conduct giving rise to grievance is completed or starts on or before 5 April 2009 if a Step 1 or starts on or before 5 April 2009 if a Step 1 letter or an ET1 is presented before 4 July letter or an ET1 is presented before 4 July 2009 (4 October 2009 for equal pay and 2009 (4 October 2009 for equal pay and redundancy claims)redundancy claims)

Otherwise new procedures will apply from 6 Otherwise new procedures will apply from 6 April 2009April 2009

Conciliation and mediationConciliation and mediation

Code theme: informal – ‘workplace’ – Code theme: informal – ‘workplace’ – mediation mediation [see Guide pp.7-8 esp. grievances][see Guide pp.7-8 esp. grievances]

Union involvement?Union involvement? Fixed conciliation periods abolishedFixed conciliation periods abolished

Better or worse?Better or worse?

Removal of draconian requirement to Removal of draconian requirement to lodge grievance before submitting lodge grievance before submitting certain types of ET claimcertain types of ET claim

Removal of partial reversal of PolkeyRemoval of partial reversal of Polkey Focus continues to be on resolution Focus continues to be on resolution

of disputes in the workplaceof disputes in the workplace

Better or worse cont’dBetter or worse cont’d

Non-application to collective Non-application to collective grievances & other loose ends on grievances & other loose ends on collective grievancescollective grievances

Transitional arrangementsTransitional arrangements Length of Code plus guidanceLength of Code plus guidance Status of Code & guidanceStatus of Code & guidance Omissions from 2008 CodeOmissions from 2008 Code

Better or worse cont’dBetter or worse cont’d

Lack of clarity re whether dismissals Lack of clarity re whether dismissals are grievancesare grievances

Which types of dismissals other than Which types of dismissals other than conduct & capability does the Code conduct & capability does the Code apply to?apply to?

Exclusion of redundancy dismissalsExclusion of redundancy dismissals Less strongly worded provisions re Less strongly worded provisions re

uplifts/reductions uplifts/reductions