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Current legislation that requires employers to follow a "three-step" processes for disciplinary, dismissal and grievances procedures, will be replaced in April 2009 by a new legal framework.

Interim provisions have been introduced to help employers to move from the old to the new legislation.

This means that any procedures that have already started on or before the 5th April 2009 (i.e. the employer has already sent out a letter to the employee regarding conduct or dismissal or the date a grievance occurred precedes this date).

you must continue to deal with these under the existing statutory procedures (although there will be the odd exception where situations involving discrimination continue after the 4th July 2009 or if redundancy or equal pay matters go beyond the 4th October 2009).

Please just ask if you're already confused!

However, for situations which arise on or after 6th April 2009:

You are very strongly advised to continue to comply with the 3 step procedure for any situation where dismissal is a possible outcome for misconduct and/or poor performance issues.
- Failure to follow the 3 step procedure (as described in the new ACAS code of practice) may NO LONGER mean an automatic finding of unfair dismissal at employment tribunal (phew), but a Tribunal will be able to adjust compensation awards by up to 25% where it finds that there has been an unreasonable failure to comply with the new code.
You are advised that whilst you will no longer have to comply with the 3 step procedure for terminations on the grounds of redundancy or expiry of fixed term contract dismissals where consultation commences on or after 6th April 2009, you need to be mindful that these dismissals will still be covered by unfair dismissal laws and therefore due diligence is still required to ensure fair selection for redundancy and lawful termination of fixed term contracts. Future case law, as the new legislation gets tested at Tribunal, will no doubt support the retention of the simple 3 step procedure. We will provide more guidance shortly.

What else will be DIFFERENT?

Unlike the current, statutory, procedures, claims to the Tribunal will no longer be barred for failing to raise a grievance before bringing the claim.
The revised version of the new Code places more emphasis on employees also having to behave reasonably and consistently.
The code provides for overlapping grievance and disciplinary cases, as well as collective grievances.
The new Code suggests disputes could be resolved by a mediator.
Employees will be advised that before considering a claim to the tribunal, they could consider calling ACAS to see what other options might be open to them rather than go straight to Tribunal.
From April, ACAS will be running an enhanced helpline (between 8am-8pm Monday to Friday and 9am-1pm on Saturdays and ACAS will be introducing an earlier conciliation service.
Where practicable, different people should carry out investigations and the disciplinary hearing.
The written notification of the disciplinary meeting to the employee should include copies of written evidence and may include any witness statements.
There is a new right for employees to call and to question witnesses at a hearing.
There is new guidance on who may or may not accompany an employee at a hearing and what the companion may do. E.g. employees have the right to an interpreter or a support worker/ advocate with knowledge of their disability in addition to the companion.
A Tribunal may award an employee 2 weeks pay if an employer does not reschedule a meeting in response to a request to facilitate the companion's attendance.
Where an employee is persistently unable or unwilling to attend a disciplinary meeting without good cause, the employer may be able to make a decision on the evidence available. Notwithstanding this new provision, you should continue to take care not to be too hasty in using this route.
A decision to dismiss should only be taken by a manager with designated authority to do so.
As regards appeals, employees should submit written grounds of appeal prior to the appeal meeting and the person holding the appeal meeting should be a different manager from the manager previously involved in the case but the manager need not be more senior.
The new Code recognise's that grievances can be resolved informally without having to go through the formal procedure.

For more information on the new draft ACAS Code regarding Discipline and Grievance: http://www.acas.org.uk/
Alternatively, call us on 0845 680 3862 or email web.enquiry@teamhr.co.uk today!

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