On 6th April 2009 The Employment Act 20081 will abolish the Statutory Dispute Resolution procedures. They will be replaced by a new ACAS Code of Practice and a supplementary Guide. The Code is designed to encourage employers and employees to try to resolve matters informally or where this is not possible, by mediation or adopting a formal disciplinary and/or grievance procedure.
Employers are likely to welcome this change. No longer will a dismissal be automatically unfair due to a technical breach of the statutory procedure. Nor will it be mandatory to apply uplift to compensation. The Tribunal will however retain the discretion to penalise a party for unreasonably failing to follow the new ACAS Code by applying uplift to compensation of 25% (reduced from the current 50%). We are unlikely to see a smooth return to the pre-October 2004 position as we have yet to see the practical application of the Code and how the Tribunal will interpret it. There are a number of areas where we are likely to see the Tribunals having input;
1 Received Royal Assent on 13th November 2008
1) The Code does not address no fault dismissals such as redundancies.
2) Whilst the Code gives best practice advice as to how to conduct disciplinary matters it does not give guidance as to what constitutes a disciplinary matter.
3) It encourages grievances to be dealt with informally but does not give clear guidance as to when a grievance should be dealt with as a formal complaint. Should all written grievances be dealt with on a formal basis?
4) It is not clear whether the grievance procedure should apply to employees who have left the organisation?
5) Little guidance is given regarding the inter-relation between disciplinary and grievance issues; and
6) How will the Tribunal exercise its discretion to increase or decrease an award of compensation?
Difficulties are likely to arise during the transitional phase as disciplinary action which has commenced and grievances that have been raised prior to the 6th April 2009 will still need to be dealt with under the Statutory Dispute Resolutions Procedures.
For further information please do not hesitate to contact Claire Fogarty or any member of our Employment Team.
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