Statutory Trip-Wires
The statutory disciplinary and grievance procedure in the Employment Act 2002 provides many statutory trip wires for both employers and employees. It has certainly increased claims to the Employment Tribunals and will be repealed in April 2009.
One example of these claims is the Employment Appeal Tribunal’s judgment on 30th April 2008 in the case of a lady who claimed sex discrimination because she was receiving unequal pay compared to the men in her organisation. She could only bring this case to the Employment Tribunal by using the statutory grievance procedure. She therefore sent letters to her employer setting out her allegations.
Then she lodged her claim in the Employment Tribunal. But this time she gave much greater detail, identifying men who were receiving better pay than she was despite the fact that they were doing the same or similar jobs.
At the same time, her union exchanged letters with her employer about whether or not the standard statutory grievance procedure should be used or the modified grievance procedure. As you can imagine, this is not something which the man on the Clapham omnibus would readily understand!
The Employment Tribunal eventually rejected her claim, not because it was wrong, but because the statutory procedure had not been followed correctly before lodging her claim with the Employment Tribunal.
Last year, the Government organised a review of the statutory dispute resolution rules and concluded that they should be changed because it caused many problems such as these.
As a result of the Government’s review, ACAS have now, this last month, released a new code of practice, which may replace the statutory disciplinary and grievance procedure.
The main difference will be that, even if an employer fails to use the code of practice, it will not open itself up to an automatic finding of unfair dismissal and likewise, the employee will not have its claim rejected by the Employment Tribunal through failure to get it exactly right.
The new code will have some teeth in that, if it is not complied with and the Tribunal think that the employer could or should have complied with it then any compensation or damages could be increased by up to 25%.
ACAS have suggested new principles rather than rules. They recommend that disputes are dealt with promptly and consistently and that employers carry out an appropriate investigation.
The principles which have previously applied in the 3-stage disciplinary and grievance procedure will continue to be upheld;
- The right to be fully informed of the details of the problem in writing
- The right to a meeting
- The right for an employee to be accompanied
- The right to appeal
Given that this new code introduces principals rather than rules written in tablets of stone, hopefully it will provide more flexibility and fewer trip wires for both employer and employee.
For more information, contact Caroline Mitchell
Published 14/05/2008. The author of this article is Caroline Mitchell
