All Change''or is it

1
All Change..or is it?

• Justin Govier, Partner
• Laurence ONeill, Solicitor

2
Statutory Dispute Resolution Regulations

• Introduced October 2004
• Cost to taxpayer and everyone involved in
  employment relations

3
What the Regulations imposed

• Statutory Disciplinary Procedure
• Statutory Grievance Procedure
• 3 stage procedures
• Modified procedures

4
What the regulations imposed cont

• Automatic Unfair Dismissal
• Rejection of claims
• Adjustments to award (10 - 50)
• Time limit extensions

5
Success or Failure

• December 2006 Government requested Gibbons
  Review
• March 2007 review recommended complete repeal
• Good policy but inappropriately inflexible and
  prescriptive regulation

6
Gibbons Review Findings

• Successes
• More clarity for parties on procedure
• Opportunity to review grievance prior to claim
• Failures
• Disputes formalised early
• Too basic, yet too technical
• Tribunals too beaurcratic
• ACAS lack of resources
• Perceived inconsistency in many areas

7
Technical Problems

• What is a grievance?
• Inter-relation between disciplinary and grievance
  procedures
• Ongoing disciplinary appeals
• 10 or 50?
• Delay in appeals
• Procedurally unfair dismissals

8
The crux of why it failed

• A step ahead or a step behind?

9
What is being introduced?

• Employment Act 2008
• S 1 - 3
• Repeals relevant sections of Employment Act 2002,
  EADR Regulations 2004, ERA 1996
• New provisions referring to parties use of Code
  of Practice
• Earlier use of acas

10
Can we forget last 4½ years?

• Transitional period
• Some decisions still very useful (e.g. what
  constitutes grievance, adjustments to awards,
  right to be accompanied)
• Increased profile of procedures

11
S.1 EA 2008

• Repeals whole structure of the EA 2002 and EADR
  Regulations
• S29 32 EA 2002

12
S.2 EA 2008

• Repeals concept of automatic unfair dismissal
  (s.98A)

13
S.3 EA 2008

• 207A TULRCA Effect of failure to comply with
  Code adjustment of awards
• (1) This section applies to proceedings before an
  employment tribunal relating to a claim by an
  employee under any of the jurisdictions listed in
  Schedule A2.
• (2) If, in the case of proceedings to which this
  section applies, it appears to the employment
  tribunal that
• (a) the claim to which the proceedings relate
  concerns a matter to which a relevant Code of
  Practice applies,
• (b) the employer has failed to comply with that
  Code in relation to that matter, and
• (c) that failure was unreasonable,
• the employment tribunal may, if it considers it
  just and equitable in all the circumstances to do
  so, increase any award it makes to the employee
  by no more than 25.

14
Tribunal Jurisdictions to which EA 2008 Applies

• Employees not workers
• E.g. unfair dismissal, all discrimination, WTR
  and NMWA equal pay
• Contradiction between Code and EA on redundancy
  lots of scope for debate
• Breach of contract and termination-uplift to
  notice pay?

15
Potential Problems

• Lots of technical arguments as Code much longer
• Was failure to comply unreasonable?
• Yet code is meant to outline reasonable behaviour

16
0 or 25

• Discretion rather than mandatory
• ETs previously inconsistent
• Starting point 0 or 25
• Already concluded it is unreasonable
• Is 25 enough? (will it stop both employers
  dismissing and employees raising grievance in
  itself or impact on liability more important)
• Nearly half adjustments over 40 in 2007

17
Time Limits

• No more extensions
• Increased time pressure but also increased
  certainty

18
Fair or Unfair Dismissal?

• Return to Polkey
• Failure in procedure unfair regardless of
  whether affected outcome
• But compensatory award reduced to reflect
  likelihood of dismissal

19
Transitional Provisions

• Grievances
• Matter happened before 6 April
• Ongoing through 6 April and grievance or ET1
  prior to 5 July / 5 October
• Lots of litigation
• Dismissal
• Step 1 letter / step 2 meeting prior to 6 April
• regime-shopping

20
Conclusions

• EADR Regulations did good job of profile raising,
  but bit late in the day
• Unnecessary technical complications
• New regime better in principle but more to
  attack
• Is a discretionary 25 on a vague calculation
  going to make difference
• Is ACAS ready / resourced (early conciliation
  encouraged)?

21
The New Code Introduction

• Comes into force 6 April 2009
• 45 Point Code of Practice
• Essential Reading!
• http//www.acas.org.uk/index.aspx?articleid2180
• Supplemented by the ACAS Guide
• http//www.acas.org.uk/CHttpHandler.ashx?id1043
  p0

22
The New Code What is it?

• Details what is fair and reasonable when dealing
  with disciplinary and grievance issues at work
• Does not cover redundancy or expiry of fixed term
  contracts.
• Not legally binding
• Tribunal awards can be adjusted by as much as 25
  for unreasonable failure to follow the code

23
The New Code

• Mindful of all circumstances of the case,
  including size and resources of Er
• Basic principles of fairness
• Er should deal with issues promptly
• Er should act consistently
• Es should be informed of basis of problem
• Es should be able to put their case
• Es should be allowed to appeal
• Ees and where appropriate their reps should be
  involved in the development of rules procedures

24
The New Code Format

• Disciplinaries
• Establish Facts
• Inform the employee of the
• problem
• Disciplinary Meeting
• Right to be accompanied
• Decide on appropriate action
• Right to appeal
• Special Cases

• Grievances
• Raise the grievance
• Grievance meeting
• Right to be accompanied
• Decide on appropriate action
• Right to appeal
• Overlapping Grievance and Disciplinary Issues
• Collective Grievances

25
The New Code Disciplinaries

• Establish Facts
• Establish Necessary Facts
• Investigatory meeting appropriate in some cases
• Different people should carry out the
  investigatory and disciplinary hearing
• No disciplinary action should result from an
  investigatory hearing
• Suspension with pay should be as short as
  possible, should be kept under review and not in
  itself disciplinary action.

26
The New Code Disciplinaries

• Inform the Employee of the Problem
• Ee should be notified in writing
• Notice should contain sufficient information
• Normally appropriate to provide copies of any
  evidence
• Should give time and venue for the disciplinary
  meeting
• Should advise Ee of right to be accompanied

27
The New Code Disciplinaries

• Disciplinary Meeting
• Should be held without unreasonable delay
• Ee should be given time to prepare
• Parties should make every effort to attend
• At the meeting, Er should go through evidence,
  explain complaint against Ee
• Ee should be entitled to set out their case
• Ee should be given reasonable opportunity to ask
  questions, present evidence and call relevant
  witnesses.
• Ee should be able to raise points about any
  information provided by witnesses

28
The New Code Disciplinaries

• Right to be accompanied
• Statutory right
• Fellow worker or TU official
• Ee must make a reasonable request
• Companion can
• Address the hearing
• Respond on behalf of the worker
• Confer with the worker
• Cross examine?

29
The New Code Disciplinaries

• Decide on appropriate action
• Inform the Ee in writing
• First or final written warnings
• Ee should be informed of consequences of further
  misconduct/poor performance
• Dismissal
• Gross Misconduct
• Guide is useful
• Disciplinary process should always be followed
• Decision in absence
• Persistently unable or unwilling to attend
  without good reason

30
The New Code Disciplinaries

• Right to appeal
• Ee should appeal
• Ee should advise of grounds of appeal in writing
• Should be heard without unreasonable delay
• Appeal should be heard by more senior person
• Right to be accompanied
• Ee should be informed of result as soon as
  possible

31
The New Code Disciplinaries

• Special Cases
• TU Cases
• Criminal offences

32
The New Code Grievances

• Raise the grievance
• In writing
• Set out the nature of the grievance
• Grievance meeting
• Held without unreasonable delay
• Ee and rep should make every effort to attend
• Ee state their case
• Investigation may be necessary

33
The New Code Grievances

• Right to be Accompanied
• At all meetings concerning right owed by Er to Ee
• Fellow worker or TU rep
• Reasonable request
• Companion can
• Address the hearing
• Respond on behalf of the worker
• Confer with the worker
• Cross Examine?

34
The New Code Grievances

• Decide on appropriate action
• Notify Ee in writing
• Inform Ee of right to appeal
• Right to appeal
• Ee should appeal
• Ee should advise of grounds of appeal in writing
• Should be heard without unreasonable delay
• Appeal should be heard by more senior person
• Right to be accompanied
• Should be informed of result as soon as possible

35
The New Code Grievances

• Overlapping Grievance and Disciplinary Issues
• If unrelated, suspend disciplinary action
• If related, hear together
• Collective Grievances
• Should use organisations own collective
  grievance process
• What if they dont have a process?

36
The New Code Likely Areas of Dispute

• Does Code apply to former employees?
• To what extent should employees and their reps be
  involved in the development of rules and
  procedures?
• Right to be accompanied statutory right vs code
• The role of cross examination
• What is persistently and good reason?
• Collective grievances