The Employment Act 2008 – A Critical Overview

1. The Employment Act 2008 – A Critical Overview Dispute Resolution & Tribunal Procedures: Overview of the New Procedures IER Conference 2009 _______________________

2. Summary of the changes • Previous procedures will be repealed from 6 April 2009 • No automatically unfair dismissal • Failure to lodge grievance does not prevent a claim • ACAS Code of Practice sets out basic minimum standards for employers & employees to resolve disputes in the workplace

3. Summary of the changes cont’d • Potential for uplift or reduction in compensation of 25% depending upon compliance or otherwise with the ACAS Code • No extensions to time limits – key lesson for TUs

4. ACAS Code of Practice • No mandatory “3 step” procedures for dismissals or grievances; • TULRCA amended so that failure to follow ACAS Code of Practice may result in uplift or reduction to compensation • Both employers and employees have duties under the Code of Practice • Code pdf at http://www.acas.org.uk/CHttpHandler.ashx?id=1041

5. ACAS Code of Practice cont’d • Code supplemented by Guidance http://www.acas.org.uk/CHttpHandler.ashx?id=1043 • Applies to conduct and capability dismissals • Applies to all non-dismissal claims for which it was previously necessary to raise a grievance, i.e. most non-dismissal claims

6. General Requirements • Issues should be raised and dealt with promptly • Parties should act consistently • Employers should carry out necessary investigations to establish facts • Right to be accompanied to meetings • Appeal procedures should be made available and used • Where grievance raised during disciplinary process, employer may suspend to deal with grievance or deal with both at same time if appropriate

7. Dismissals – Employer responsibilities • Carry out investigations and hold meetings without delay • Keep suspension periods as brief as possible • Notify employee in writing of the case against them and possible consequences as well as time and venue for disciplinary meeting • Provide copies of any written evidence including witness statements

8. Dismissals – Employer responsibilities cont’d • At the hearing, explain the complaint to the employee and give an opportunity to put case • Give employee a reasonable opportunity to ask questions present evidence and call witnesses. Advance notice to be given of witnesses • Different people to carry out investigation, disciplinary and appeal hearing where possible • Inform employee of any action in writing

9. Dismissals – Employer responsibilities cont’d • If dismissal, must give reasons for dismissal, termination date and right of appeal • Where employee persistently unwilling or unable to attend, employer entitled to make decision on evidence available • Appeals to be heard without delay at an agreed time and place • Inform employee of outcome of appeal as soon as possible in writing

10. Dismissals – Employee responsibilities • Not unreasonably delay & make all efforts to attend meetings (and also consider “right to be accompanied” provisions) • Notify employer in advance of any witnesses to be called • In most situations, appeal in writing against a decision that they consider to be wrong

11. Grievances – Employer responsibilities • Hold a formal meeting without delay Where possible, manager not involved with case should hear it • Make every effort to attend the meeting • Allow employee to explain grievance • Adjourn and investigate if necessary • Communicate decision in writing without unreasonable delay

12. Grievances – Employer responsibilities cont’d • Inform of right to appeal • Hear appeals without unreasonable delay • Wherever possible have a different manager hear the appeal • Communicate the outcome of the appeal in writing without delay

13. Grievances – Employee responsibilities • Try informal resolution first, + ASAP • If matter can’t be dealt with informally, raise the matter formally and without unreasonable delay • Put grievance in writing and set out nature of the grievance • Make every effort to attend meetings • Appeal if not satisfactorily resolved giving grounds of appeal

14. Collective Grievances • Different arrangements apply for ‘collective grievances’ • Code defines as: “grievances raised on behalf of two or more employees by a representative of a recognised trade union or other appropriate workplace representative”.. [not defined]

15. Collective Grievances cont’d • Industrial prerequisites for a collective grievance • Issue common to a group of members • Authority from the group purported to grieve • Collective grievances should be raised in accordance with existing procedure • No uplift/reduction in compensation!

16. Dismissal and grievance arising together • A dismissal might give rise to a claim other than unfair dismissal (such as discrimination) • Alternatively there might be incidents of discrimination or other money claims which are linked to dismissal • Raise appeal and grievances in same letter and ask for them to be heard together • If grievance not linked to dismissal, send a separate grievance letter

17. Time Limits • Extensions to time limits will no longer apply • All claims must be submitted within primary limitation period • Try to lodge appeal or grievance well before submitting the claim if possible

18. Right to be Accompanied • Provisions of S.10 Employment Relations Act 1999 apply • Code explains but does not add to current statutory procedures • Right to be accompanied to grievance and disciplinary hearings • Right to have meeting rearranged within 5 working days if representative can’t attend

19. Transitional Arrangements • “Old” dismissal/disciplinary procedures apply where Step 1 letter sent or Step 2 meeting held or where dismissal /disciplinary action has taken place before 6 April 2009 • “Old” grievance procedures apply where conduct giving rise to grievance is completed or starts on or before 5 April 2009 if a Step 1 letter or an ET1 is presented before 4 July 2009 (4 October 2009 for equal pay and redundancy claims) • Otherwise new procedures will apply from 6 April 2009

20. Conciliation and mediation • Code theme: informal – ‘workplace’ – mediation [see Guide pp.7-8 esp. grievances] • Union involvement? • Fixed conciliation periods abolished

21. Better or worse? • Removal of draconian requirement to lodge grievance before submitting certain types of ET claim • Removal of partial reversal of Polkey • Focus continues to be on resolution of disputes in the workplace

22. Better or worse cont’d • Non-application to collective grievances & other loose ends on collective grievances • Transitional arrangements • Length of Code plus guidance • Status of Code & guidance • Omissions from 2008 Code

23. Better or worse cont’d • Lack of clarity re whether dismissals are grievances • Which types of dismissals other than conduct & capability does the Code apply to? • Exclusion of redundancy dismissals • Less strongly worded provisions re uplifts/reductions