DTI responds to public consultation on dispute resolution Regulations
The DTI has published its response1 to the public consultation on the new dispute resolution Regulations to be established under the framework for statutory disciplinary and grievance procedures provided by the Employment Act 2002 ("the EA 2002").
Draft Regulations were published in July 2003 (see www.dti.gov.uk/disputeresolution.htm). Draft revised Regulations have now been published (available at www.legislation.hmso.gov.uk/si/si2004/draft/20048455.htm). The Regulations have now been substantially revised in the following key areas:
Extended time limits (reg.15). In a case where the statutory dismissal and disciplinary procedure applies, the employee's time for presenting a complaint to an employment tribunal will be extended by three months. So an employee will now have six months after the effective date of termination within which to bring a claim, provided that he or she "had reasonable grounds for believing, when the normal [three-month] time limit expired, that a dismissal or disciplinary procedure, whether statutory or otherwise, was being followed in respect of the matter that consisted of or included the substance of the tribunal claim". In cases where the statutory grievance procedure applies, reg. 15 already provides that there should be a similar three-month extension.
Gross misconduct dismissals. Regulation 3 now makes it clear that these are the only occasions in which the modified dismissal procedure applies.
New exceptions. Where the employer's business suddenly ceases to function, or where the employee cannot continue to work without contravention (by either party) of a legal duty or restriction, the dismissal and disciplinary procedures will now not apply at all. Previously, it was thought the modified procedure would apply in such cases.
"Grievance" defined. A "grievance" has now been defined as "a complaint by an employee about action which his employer has taken or is contemplating taking in relation to him".
There has been no change in the following since July 2003:
Retirement dismissals. The government still wants the dismissals procedure to apply to retirement dismissals in circumstances where the employee could claim unfair dismissal. Currently, this would not be the case where the employee was 65, or had reached the normal retirement age for the job, but forthcoming age discrimination legislation may change this.
Termination of fixed-term contracts. The statutory procedure will also apply to dismissals on termination of fixed-term contracts
Warnings and suspension on full pay remain outside statutory procedures and are not included in the statutory definition of "disciplinary action". The government takes the view that requiring employers to use a three-step procedure before taking such action would be onerous and unreasonable.
Implied contractual term. The statutory procedures will not (initially, at least) be implied into every contract of employment between an employer and an employee, as originally envisaged by s.30 of the EA 2002. The statutory procedures, and the dispute resolution regulations, are expected to come into force on 1 October 2004.
