Repeal of the statutory dispute resolution procedures

Section 1 of the Employment Act 2008, which received Royal Assent on 13 November 2008, repeals the statutory dispute resolution procedures set out in ss.29 to 33 and schs.2 to 4 of the Employment Act 2002.

In the XpertHR outlook video below, XpertHR editors Jo Stubbs and David Shepherd discuss the employment law outlook for 2009, focusing on the repeal of the statutory dispute resolution procedures in April 2009 and the new Acas code on disciplinary and grievance procedures. (The video makes reference to the Employment Act 2008 transitional provisions but please note the further developments set out below.)

 

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The provisions of the Employment Act 2008 will come into force in stages: the provision repealing the statutory dispute resolution procedures and those relating to any unreasonable non-compliance with statutory codes of practice will come into force on 6 April 2009.

Transitional provisions govern when the statutory dispute resolution procedures will continue to apply on and after 6 April 2009. Those provisions are set out in the Employment Act 2008 (Commencement No.1, Transitional Provisions and Savings) Order (SI 2008/3232). They state that the repeal of the statutory dispute resolution procedures will not apply in circumstances where the statutory dismissal and disciplinary procedures apply and the employer has, before 6 April 2009:

• complied with the requirements of para.1, 2 or 4 of sch.2 to the Employment Act 2002 (step one of the standard dismissal and disciplinary procedure, step two of the standard procedure and step one of the modified procedure);
• taken relevant disciplinary action against the employee (ie action short of dismissal that the employer asserts to be based wholly or mainly on the employee's conduct or capability, other than suspension on full pay or the issue of oral or written warnings); or
• dismissed the employee.

For these purposes, the employer will be treated as having complied with para.1 of sch.2 where it has set out in writing the employee's alleged conduct or characteristics, or other circumstances, that lead it to contemplate dismissing or taking disciplinary action against him or her, and sent the statement, or a copy of it, to the employee. The employer will be treated as having complied with para.2 of sch.2 where the employee attends a meeting with the employer and the employer informs the employee that it is contemplating dismissing or taking disciplinary action against him or her. The employer will be treated as having complied with para.4 of sch.2 where it has set out in writing the alleged misconduct that led to the employee's dismissal, and the basis for thinking at the time of the dismissal that he or she was guilty of the alleged misconduct, and sent the statement, or a copy of it, to the employee.

The repeal of the statutory grievance procedures will not apply in circumstances where the action about which the employee complains occurs wholly before 6 April 2009; or where:

• the action that forms the basis of the grievance begins on or before 5 April 2009 and continues beyond that date; and
• the employee presents a complaint to the employment tribunal or complies with para.6 or 9 of sch.2 to the Employment Act 2002 (step one of the standard grievance procedure or step one of the modified procedure) in relation to the grievance on or before 4 July 2009, or 4 October 2009 in redundancy pay or equal pay claims.

Section 3 of the Employment Act 2008 amends the provisions in the Trade Union and Labour Relations (Consolidation) Act 1992 that authorise Acas to issue codes of practice promoting the improvement of industrial relations. Under the new provisions, where there is a breach of a relevant code of practice, a tribunal can increase or decrease any award made by up to 25%. Acas has revised its "Code of practice on disciplinary and grievance procedures" to take account of the repeal of the statutory procedures; the revised code has been approved by Parliament. An unreasonable failure to comply with the code could lead to an increase (or decrease) of up to 25% in the compensation awarded by a tribunal.

At present s.98A(1) of the Employment Rights Act 1996 states that a dismissal will be automatically unfair where one of the statutory dispute resolution procedures applies but it has not been completed and the blame for the non-completion lies with the employer. However, under s.98A(2), a failure to follow a fair procedure over and above the statutory minimum procedure will be disregarded, provided that the failure would have made no difference to the outcome, ie the employee would still have been dismissed. Section 2 of the Employment Act 2008 repeals s.98A, returning the law on unfair dismissal to the position prior to the dispute resolution procedures coming into force in October 2004. This means that procedural failings will normally render a dismissal unfair, but compensation can be reduced in proportion to the likelihood that the dismissal would have occurred had a fair procedure been followed.

XpertHR guidance

• In a series of four articles, Steeles (Law) LLP examines the forthcoming changes to the disciplinary and grievance regime: overview; the Acas code and guide; frequently asked questions on the requirements of the revised Acas code; frequently asked questions on the impact of the repeal of the statutory procedures.
• Dispute resolution procedures repeal: employers' questions answered Employment Law Bulletin consultant editor, Darren Newman, deals with the processes to follow in redundancy dismissals; employees' right to call relevant witnesses; dismissals that would have fallen under the modified statutory dismissal procedure; time limits for appeals; and grievances from ex-employees.
• Legal Q&A: Acas discipline and grievance code of practice Chris Bain, solicitor at Thomas Eggar, looks at the implications of the revised code for employers.
• Repeal of the statutory dispute resolution procedures: overview; Acas code of practice and guidance; case study Osborne Clarke provides a series of articles on the repeal of the statutory dispute resolution procedures.
• The Employment Act 2008 and new Acas code of practice on disciplinary and grievance procedures Employment Law Bulletin consultant editor, Darren Newman, examines the provisions of the Employment Act 2008 in detail and looks at the provisions of the revised Acas code.
• Disciplinary rules and procedures and grievance procedures The XpertHR employment law manual sets out the law on discipline and grievance.

External documents

• The Employment Act 2008, Explanatory Notes (PDF format, 212K), and Employment Act 2008 (Commencement No.1, Transitional Provisions and Savings) Order 2008/3232 are available on the OPSI website.
• The revised Acas code of practice on disciplinary and grievance procedures, and draft guidance to complement the code of practice in Discipline and grievances at work - draft Acas guide (PDF format, 368K) are available on the Acas website. Unlike the code the guidance is advisory only and will not be taken into account by employment tribunals.
• A review of employment dispute resolution in Great Britain (PDF format, 376K) (on the BERR website) was led by Michael Gibbons, a member of the Better Regulation Commission. In response to the review, the Government sought views on measures to resolve workplace disputes as early and as successfully as possible: Resolving disputes in the workplace - a consultation (PDF format, 324K), which is available on the BERR website together with the Government's response (PDF format, 289K).
• The Government issued a consultation on measures connected to dispute resolution requiring secondary legislation: Dispute resolution: secondary legislation consultation (PDF format, 268K), which is available on the BERR website together with the Government's response (PDF format 1.52MB).