Author Julian Outen

Issue Autumn 08

Pub IoD

When statutory dismissal and grievance procedures (SDGP) were introduced in 2004, they were to herald a reduction in Employment Tribunal claims, as parties settled their differences amicably in the workplace.

Unfortunately, the reforms have led to a complex and confusing state of affairs creating uncertainty and increased cost and risk for businesses.

Claims have risen by more than 50 per cent and I would be very surprised if the majority, if not all, of these did not cite a failure to comply with the SDGP as an element of the claim.

A new Employment Bill is working its way through Parliament and this should lead to a new set of procedures coming into force next spring. These are designed to “simplify, clarify, and build a strong enforcement regime for key aspects of employment law” thereby saving employers £180 million a year in dealing with employee disputes, and relieving the burden on the overstretched Employment Tribunal system. Importantly, the Employment Bill is designed to repeal the existing SDGP. In addition, a new ACAS Code of Best Practice will be introduced, which although not legally binding, unlike the current SDGP, may be taken into account by the Employment Tribunal.

If a Tribunal finds that an employer has unreasonably failed to follow the new Code in dismissing an employee, it will have discretion to adjust any compensatory award by up to 25 per cent (up or down). The devil will be in the detail, but unlike the current regime where a failure to follow the procedure automatically renders the dismissal unfair, this will no longer be the case.

It remains to be seen whether such provisions, ultimately, will simply mean one set of procedural hurdles with penalties for non-compliance being replaced with another. However, it is an encouraging and a well-overdue development.

Under the new rules, emphasis will be attached to Alternative Dispute Resolution and, more specifically, Mediation, which will not be made compulsory but is likely to feature in a voluntary code and may, as in the civil courts, become relevant to conduct and costs if it has been unreasonably ignored.

The Bill also gives ACAS wider discretion to conciliate in pre-tribunal disputes and we are informed that greater resources will be given to facilitate that. The current fixed conciliation periods in certain categories of claims will be removed so that ACAS may be involved at any stage of a claim up to the hearing.

Between now and the introduction of the new regime, the existing rules still apply and should be followed to avoid claims of automatic unfair dismissal and uplifts of compensation. Grievances should also be responded to appropriately.

Undoubtedly, there will be transitional arrangements and employers will want to consider updating their policies and procedures once the new regime is finalised.

It is to be hoped that satellite litigation over SDGP technicalities will become a thing of the past with the introduction of a new regime, so that we can all be spared further unnecessary grief

Julian Outen, Partner

Employment Department

Tel: 01473 232425

Email: julian.outen@ashtonkcj.co.uk

Click here to download this article as a pdf

Other articles