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Dispute Resolution
Dispute Resolution – Disciplinary, Dismissal and Grievances
Dispute Resolution
Introduction & a reminder of the basics
Effective 1st October 2004 All employers (no minimum number of staff) All employees – but not “workers” (even
though right to be accompanied applies to “workers” as well)
All employees – no qualifying period of service “DDP” – disciplinary and dismissal procedures
Dispute Resolution
Introduction & a reminder of the basics
“As easy as 1,2,3” – according to the DTI
Put it in writing Meet and discuss Appeal
www.dti.gov.uk/resolvingdisputes
Dispute Resolution
Automatic unfair dismissal if non compliance – one year’s qualifying requirement applies
Compensation increased by 10% to 50% - but maximum of £55,000 still applies
For unfair dismissal cases only, basic award increased to a minimum of 4 weeks (if employee has under 4 years’ service)
Introduction & a reminder of the basics
Dispute Resolution
Where the procedures do not apply
The procedures do not apply where: The Employee is suspended on full pay The Employer is “contemplating” issuing a
written or verbal warning, rather than a dismissal
Dismissal is as a result of: unofficial or unprotected industrial
action where employment would be illegal sudden unforeseen closure of
workplace
Dispute Resolution
Where the procedures do apply
The disciplinary and dismissal procedures apply in many situations in addition to disciplinary, conduct & performance matters:
Failure to be successful in a probationary period (remember – no qualifying period of service)
Redundancy – other than multiple redundancies of over 20 employees
Retirement
Dispute Resolution
Where the procedures do apply (cont’d)
Demotion Business reorganisation, where there is
termination and re-engagement, unless all employees in a category are terminated and re-engaged
Non renewal of a fixed term contract
Dispute Resolution
Probationers, short fixed term contract employees & retirees
Probationers, employees with short fixed term contracts and retirees cannot bring a conventional unfair dismissal case:
The first 2 because less than a year’s service The latter because over retirement age
So, are you in the clear as far as these categories are concerned?
NO!
Dispute Resolution
The Scope of the Dismissal and Disciplinary Procedures
Although most often discussed in the context of “conventional” unfair dismissal, Tribunals will examine if the DDP has been completed in cases brought under many other jurisdictions, and if not may increase any compensation by 10% to 50%
Dispute Resolution
The Scope of the Dismissal and Disciplinary Procedures (cont’d)
The list includes: Automatic unfair dismissal allegations (neither a
qualifying period nor upper age limit apply) Sex, race, disability, religious or sexual orientation
discrimination Breach of employment contract Equal pay Breach of Working Time Regulations Detriment in relation to Trade Union activities
Dispute Resolution
Getting it wrong
The DTI guidance states that there is no need to follow DDP for compulsory retirement of employees over retirement age:
Wrong! Such an employee could bring any of the claims
referred to on previous slide As could unsuccessful probationers or employees
with short fixed term contracts who are not re-engaged
Dispute Resolution
Probationers, short fixed term contract employees & retirees
Probably over-reaction to apply DDP to all such terminations
But be aware that if there is any risk of a claim in an applicable jurisdiction, best to undertake DDP
Dispute Resolution
Redundancies and Business Reorganisations
DDP applies; but in practice in redundancy exercises there will be correspondence & meetings anyway, so compliance probable
Remember appeals – awkward in termination & re-engagement exercises
Dispute Resolution
The Procedures in Action
In unfair dismissal claims, substantive fairness still required and normal rules apply:
Investigation Separation of roles Fair reason to dismiss Fair & reasonable in all the circumstances
Timing & location of meetings must be reasonable
Dispute Resolution
The Procedures in Action (cont’d)
Each step must be undertaken without unreasonable delay
Meetings must be conducted so that employee is able to explain his case
Employer must actively tell the employee about right to appeal
Appeals should be conducted by a more senior person
Dispute Resolution
Outcomes & scenarios
An employee with over a year’s service is dismissed for medical incapability reasons. A comprehensive procedure is followed, with consultant’s reports etc, but the employer omits tell the employee that he has a right of appeal. The employee knows that anyway, and makes an unsuccessful appeal.
Dispute Resolution
Outcomes & scenarios (cont’d)
The Tribunal’s decision: Under normal rules, the dismissal is fair - failure to inform about appeal not enough to make it unfair.
But – DDP is defective – so, automatic unfair dismissal. Reasonableness irrelevant.
Calculation of award: Basic award of 4 weeks minimum Normal compensatory award based
on losses Increase compensatory
award by 10% to 50%
Dispute Resolution
Outcomes & scenarios (cont’d)
Employee dismissed for conduct reasons, based on single allegation of insubordination. Employer follows DDP to the letter. Tribunal decides dismissal was outside band of reasonable responses, so dismissal unfair. But, since DDP complied with, normal compensation calculation with no enhancement.
Dispute Resolution
Outcomes & scenarios (cont’d)
The company wants a senior director to be made redundant immediately – going through a consultation exercise etc is not seen as feasible. You are asked to calculate what payment under a compromise agreement should be given, and you make a generous allowance, given that the employee will probably get another job soon. He is given the agreement, and his solicitor has now written to you claiming an extra 10% to 50% award. Do you have to pay this?
Dispute Resolution
Grievance Procedures
A mirror image of the DDP:• Complaint in writing• Meeting • Appeal
Most tribunal claims are barred unless the employee has lodged an internal grievance and waited for 28 days
Dispute Resolution
Grievance Procedures
The employee can bring a Tribunal claim after the 28 days if the employer has not resolved the grievance to his/her satisfaction
Assuming Tribunal accepts the claim, ie the 28 day period has been complied with, any awards can be reduced by 10% to 50% if the employee has not complied with the procedures
Dispute Resolution
Grievance Procedures
Complex rules extend the period during which a Tribunal claim can be presented where there is a grievance being heard
Dispute Resolution
ACAS Code on Disciplinary & Grievance Procedures
The new version of the ACAS Code on Disciplinary and Grievance Procedures has been formally published by The Stationery Office.
It has been updated to incorporate the statutory dismissal and grievance procedures which, with the ACAS Code, came into force on 1st October 2004.
http://www.acas.org.uk/publications/pdf/CP01.pdf (Adobe Acrobat required)
Dispute Resolution
Role of Companion at Disciplinary Meetings
Employment Relations Bill currently going though Parliament
Likely to become law in 2005Deals mainly with various Trade Union mattersAnd, the companion’s role at disciplinary meetings is “clarified”
Dispute Resolution
Role of Companion at Disciplinary Meetings (cont)
“The employer must permit the worker’s companion to address the hearing to:
Put the worker’s case Sum up that case Respond on the worker’s behalf to any view
expressed at the hearing
The companion is permitted to confer with the worker during the hearing”
Dispute Resolution
Dispute Resolution – Disciplinary, Dismissal and Grievances
Questions and Conclusion
Harry Sherrard+44-1444-473344
