50% to any award). Dismissal and Disciplinary Procedures. From 6 April 2009,
the statutory dismissal and disciplinary procedure ("SDDP") will still apply where.
Hot topic Repeal of the Statutory Dispute Resolution Procedures The Transitional Provisions – Do the New or Existing Rules Apply?
Grievance Procedures From 6 April 2009 the statutory grievance procedure ("SGP") will still apply where:
Despite the repeal of the statutory dispute resolution procedures on 6 April 2009, employers will not be able to forget their existence immediately. For dismissals, disciplinaries and grievances already "in play" as of 6 April, transitional provisions may apply requiring an employer to continue to comply with the existing statutory procedures (with the attendant risk in any subsequent claim of a finding of automatic unfair dismissal and an uplift of between 10% and 50% to any award).
the action about which the employee complains (by sending a step 1 letter or presenting a complaint to an Employment Tribunal) occurs wholly before 6 April 2009; or the action which forms the basis of a grievance begins on or before 5 April 2009 and continues beyond that date and (a)
on or before 4 July 2009 the employee sends his/her employer a written grievance or presents a tribunal complaint where his/her claim arising from that grievance has a 3 month time limit (save where (c) below applies);
(b)
on or before 4 October 2009 the employee sends his/her employer a written grievance or presents a tribunal complaint where his/her claim arising from that grievance has a 6 month time limit (i.e. equal pay claims and claims relating to payment of a statutory redundancy payment); or
(c)
on or before 4 October 2009 the employee his/her employer a written grievance or presents a tribunal complaint where his/her claim relates to a dismissal in connection with industrial action (s238 TULCRA).
Dismissal and Disciplinary Procedures From 6 April 2009, the statutory dismissal and disciplinary procedure ("SDDP") will still apply where on or before 5 April 2009 the SDDP is applicable to the matter in hand and has essentially been "triggered" on or before that date namely, where the employer: has sent a step 1 letter or held a step 2 meeting under the SDDP; or taken "relevant disciplinary action" under the SDDP against the employee; or dismissed the employee.
Summary Please find attached a summary with examples setting out when the existing procedures will continue to apply on and after 6 April. If you would like to discuss these provisions further or require advice, please do not hesitate to contact your usual Osborne Clarke contact or Catherine Shepherd.
Catherine Shepherd Senior Associate
[email protected]
These materials are provided for general purposes only. Osborne Clarke does not accept liability for the contents of these materials and legal advice should be taken in respect of a particular matter. © Osborne Clarke
osborneclarke.com Regulated by the Solicitors Regulation Authority
© Osborne Clarke February 2009 Publication number 6668980
Summary of the Transitional Provisions applying to dismissals, disciplinaries and grievances on the repeal of the statutory procedures DISCIPLINARIES AND DISMISSALS Checklist The SDDP will continue to apply from 6 April onwards where: √/X 1.
The matter is one to which the SDDP applies; AND
2.
On or before 5 April the employer has: (a) sent a step 1 letter; (b) held a step 2 meeting; (c) taken any relevant disciplinary action; (d) dismissed the employee.
Even where the SDDP applies, remember also to consider other procedural requirements for a "fair" procedure, including consideration, as appropriate of the ACAS Code on disciplinary and grievance issues. The same considerations apply where the SDDP does not apply.
Examples Maggie works late night in a petrol station. Her employer suspects her of stealing since it has noticed that a number of confectionary items are missing after her shifts. Maggie is called into a meeting with HR on 2 April 2009 and informed of the allegations and that an investigation will be taking place which may result in disciplinary proceedings being instigated. She is told the investigation may take up to 5 days. The meeting about the investigation is not a meeting falling within the scope of the SDDP. Therefore, at present, the SDDP will not apply albeit the alleged misconduct occurred prior to 6 April. If it is decided to instigate a disciplinary process, the company should make sure it considers the revised ACAS Code on disciplinaries and grievances. If not, it may risk up to a 25% uplift in any compensation awarded to Maggie if she is subsequently unfairly dismissed. However, should the investigation finish earlier than anticipated and Maggie does receive a "step 1" letter prior to 6 April inviting her to a disciplinary meeting, the SDDP will apply and her employer will risk a finding of automatic unfair dismissal if it fails to follow the SDDP and an uplift of between 10% and 50% to any compensation award.
John receives a letter on 5 April 2009 stating that it is proposed that a small number of individuals from the pool of employees in which he works are "at risk" of redundancy and inviting him to a meeting with HR. The SDDP has never fitted neatly with the procedure many employers adopt on redundancy. John is likely to argue that this letter is a step 1 letter with the result that the SDDP applies to any subsequent dismissal. However, the company could try and argue that this letter is not a step 1 letter – this will only be sent after the meeting with HR if following the application of selection criteria, it confirms that John is one of the employees in the pool identified "at risk" of redundancy. If so, on the basis no further action is taken until after 6 April, the SDDP will not apply and nor will the revised ACAS Code on disciplinaries and grievances (since this expressly excludes redundancies from its scope). Further, there can be no finding of automatic unfair dismissal and no statutory uplift to any compensation awarded to John.
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GRIEVANCES Checklist The SGP will continue to apply from 6 April onwards where: √/X 1.
The matter is one to which the SGP applies; AND
2.
The "action" set out in the employee's step 1 letter (or an ET claim) occurs wholly before 6 April; OR
3.
The "action" forming the basis of the grievance begins on or before 5 April and continues after that date and the employee submits his/her step 1 letter (or an ET Claim): (a) on or before 4 July; OR (b) on or before 4 October where the claim relates to equal pay, a statutory redundancy payment or a dismissal in connection with industrial action.
Even where the SGP applies, remember also to consider other procedural requirements for a "fair" procedure, including consideration, as appropriate of the ACAS Code on disciplinary and grievance issues. The same considerations apply where the SGP does not apply.
Examples Sally works in an all male team. She is constantly the butt of jokes and never invited out for a drink after work. This has been going on since she joined the company on 10 January 2009. At her wits end, she feels her health is deteriorating and she eventually plucks up courage and writes an email to HR on 4 July outlining her concerns and the treatment she has suffered. On the basis that the harassment began before 6 April 2009 and continued thereafter culminating in a claim on the cut off date of 4 July 2009, the SGP will apply. The company must therefore follow this to avoid the risk of an uplift to any compensation awarded to Sally for sex discrimination (and if she has resigned, constructive unfair dismissal) of between 10% and 50%. Had Sally not put in her complaint until 5 July, the SGP would not apply although the Company would still need to consider the revised ACAS Code on disciplinaries and grievances to avoid an Employment Tribunal exercising its discretion to apply a 25% uplift.
John is not awarded a bonus on 1 April. Whilst it is discretionary, he believes that his performance has been excellent and that an award should have been made in his favour. He reckons that it is because his female boss does not like men. He waits a few days just to check the company does not send him a letter informing him that they have a made a mistake but eventually emails his boss on 6 April setting out his complaint. The SGP will apply – the action about which John is complaining took place – that he has been discriminated against on the grounds of his sex by the non-payment of a discretionary bonus – occurs wholly before 6 April. Had the bonus been contractual (and therefore the claim been rightfully made under the Equal Pay Act rather than the Sex Discrimination Act), John would have had until 4 October to submit his complaint and still been able to take advantage of the SGP. Note that the Employment Tribunal will not have any jurisdiction to hear a complaint of breach of contract whilst he is still employed.
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