Statutory Disciplinary Procedure
I talked last week about the increasing importance of procedure in employment law. You may remember that the introduction of the statutory disciplinary procedure in October 2004 added a few more mines for employers to tread on.
However, employees also need to be wary. The statutory grievance procedure, introduced at the same time as the disciplinary procedure, imposes on employees obligations which previously did not exist. Failing to follow these procedures could have a negative impact on any claim made in the Employment Tribunal and even stop you getting there in the first place.
Let’s look at a practical example of the effect of these new regulations.
Kylie has always wanted to be a hairdresser. Two years ago she landed her dream job in a new salon. Everything went well for the first year and then the salon was sold. The new owner for some reason appeared to take against Kylie from day one. Kylie was always on sweeping duty and had to make tea and coffee for everybody, whereas the previous owner had a rota system. The new owner was critical of everything that Kylie did and constantly put her down in front of colleagues and customers. It gets to the point where Kylie can’t stand it any more. On the advice of a family friend who used to work in management some years ago, she resigns and makes a complaint of constructive dismissal to the Employment Tribunal.
The Employment Tribunal then writes to Kylie asking whether she raised a grievance before she resigned. She didn’t and is told that unless she raises a grievance her case will not be heard by the tribunal.
What Kylie should have done before she resigned is to write to the owner of the salon setting out exactly why she thought she had been badly treated. The employer then should have set up a grievance hearing. Kylie should have taken all reasonable steps to attend the hearing and could have been accompanied by a Trade Union Representative or a colleague. Before the hearing Kylie should have provided her employer with information about her complaint. The employer must then have informed Kylie of her decision in writing and of her right of appeal. Kylie, if she was unhappy with the outcome, should have appealed.
Kylie did not follow this procedure but she has resigned, so what should she do? She still has to send a written grievance to the salon. Now, as she has already left, Kylie may feel that there would be no point in having a meeting to discuss the grievance. Kylie can suggest to her employer that they follow the modified statutory procedure. If the salon agrees, it will simply respond to Kylie’s grievance in writing, rather than holding a meeting first.
Kylie will not be allowed to proceed with her complaint to an Employment Tribunal until 28 days have passed since she raised the grievance. If Kylie wins her claim, her compensation could be reduced if she doesn’t follow one of the steps of the procedure, such as by not attending a grievance meeting or not appealing the outcome of the meeting, if the full procedure is followed.
As you can see, the statutory grievance procedure introduces a lot of bureaucracy and doesn’t seem to take into account the realities of the workplace. So what was the point of introducing the procedure? DTI research shows that 35% of people bringing claims do not resolve the issue with their employer first. Given the large numbers of tribunal claims, this is a problem. Therefore, the idea is that people should at least try to resolve their issues before bringing in the lawyers.
However, whether this will bring a noticeable reduction on the number of tribunal claims or simply impose onerous burdens on smaller organisations remains to be seen.
Published 27/09/2006.
