New regulations governing dismissals, disciplinary action and grievances
The Employment Act 2002 (Dispute Resolution) Regulations 2004 came into effect on 1 October 2004. They aim to encourage employers and employees to resolve disputes through dialogue, easing the pressure on employment tribunals and reducing costs.
As a result of the legislation, employers need to follow a three-step procedure for handling dismissals, disciplinary actions and grievances.
Dismissals and disciplinary action
The procedure:
Put the grounds for disciplinary action or dismissal in writing and give a copy to the employee.
Step 2 - Talk it through
Hold a face-to-face meeting with the employee. Afterwards, tell your employee what your decision is and offer them the right to appeal.
Step 3 - The appeal
If the employee wishes to appeal, they must tell you. You must invite them to a second meeting to discuss the appeal and give the employee your final decision after the meeting.
Remember:
•Each step must be taken without unreasonable delay
•The timing and location of the meetings must be reasonable
•You must ensure the employee has all the relevant information in advance of the meeting
•Meetings must allow both you and the employee to explain your cases
•In the case of an appeal meeting, you should, where possible, be represented by a more senior manager than attended the first meeting
•The employee has the right to choose to be accompanied to both meetings by either a colleague or a trade union official
•If the employee or person accompanying them is disabled you must take this into account and ensure they can participate fully.
If the employer fails to follow the procedure:
•The dismissal becomes automatically unfair (where the employee has the right to claim unfair dismissal)
•A mandatory minimum of four weeks' pay is awarded to the employee
•Any additional compensation is increased by a minimum of 10% up to a maximum of 50%
If the employee fails to follow the procedure:
•Any award is reduced by a minimum of 10% up to a maximum of 50%
The modified procedure:
There is a modified procedure for certain situations, including:
•some collective or constructive dismissals
•some gross misconduct dismissals
•dismissals where employment cannot continue for reasons beyond anyone's control
•all disciplinary action except oral and written warnings and suspensions on full pay
Step 1 - Put it in writing
Send the employee a written explanation of the alleged misconduct that led to their dismissal - including the evidence for this decision and the employee's right to appeal.
Step 2 - The appeal
If the employee wishes to appeal they must inform you. You must invite the employee to a meeting to discuss the appeal and give them your final decision afterwards.
Grievances
When an employee has a grievance against their employer the procedure is the same, except that for Step 1 the employee must send a written explanation of their grievance to you, stating the basis for the complaint. There is also a modified two-step process. The procedures apply to grievances that could form the basis for a tribunal complaint. Therefore, when a grievance is lodged with an employer, they must decide if it could eventually form the basis of a tribunal case and, if so, follow the procedure accordingly.
The procedures are deemed completed where a party fails to adhere to them because of a reasonably held belief of a threat, of continuing harassment or where it is not practicable for the party to complete them within a reasonable period.
Does the procedure apply in any other situations?
The dismissal and disciplinary procedure applies beyond many employers' commonsense understanding of a dismissal. It also includes the end of a fixed-term contract, enforced retirement and small-scale redundancies.
Although the new procedure doesn't technically apply to action against an employee on conduct or capability grounds where only an oral/written warning is given, it does apply where there is any possibility of other action as a result.
This includes action such as demotion or a performance improvement plan in the context of capability.
Practically, therefore, employers will need to observe the procedure in most conduct and capability situations.
