New regime affecting employment tribunals

6 April 2009

On 6 April 2009 the Employment Act 2008 introduced a new regime affecting the majority of employment tribunal claims in England, Wales and Scotland. It repealed the statutory dismissal, disciplinary and grievance procedures and introduced a new ACAS Code of Practice on Disciplinary and Grievance Procedures. Parties would probably agree that the ACAS Code provides clearer practical guidance more accessibly than the employment statute to which parties were previously directed. How it plays out in practice remains to be seen.

On the whole, the new regime has been cautiously welcomed by employee representatives as encouraging employers and employees to resolve their differences in a more informal way than the old grievance procedure, as well as being a move towards judging employer and employee conduct at the award stage (which in theory seems more motivational for both parties) instead of requiring an exercise in box-ticking and hoop-jumping up front.

However, there is some concern from employer representatives that they will lose out on their “early warning” system if employees are entitled to issue a claim without first having put their grievance in writing to the employer and there is some uncertainty as to whether the ACAS Code applies to ex-employees.

An upward or downward adjustment will now be made to a Tribunal award where either the employer or employee has unreasonably failed to comply with the new ACAS Code and the Tribunal decides that an adjustment would be just and equitable. Any failure to follow the old grievance procedures, would generally have resulted in an adjustment of between 10 and 50%, and only exceptionally lower than 10%. A failure to adhere to the new ACAS Code would now likely result in an adjustment of between 0 and 25%. The discretion of the Tribunal to decide on a case by case basis is preserved, with the adjustment being to the degree the Tribunal considers just and equitable on a case-by-case basis.

The new ACAS Code applies broadly to “disciplinary situations in the workplace” including misconduct and poor performance (but not to redundancy dismissals), and to “disciplinary sanctions” such as formal warnings, suspensions and dismissal (but not to informal verbal warnings).
The rules regarding investigations are certainly more detailed, with requirements for a fact-finding investigation to be carried out “without unreasonable delay” and for different people respectively to carry out the investigation and the disciplinary hearing in misconduct cases, under the new ACAS Code.
A breach of the old grievance procedures would have made the dismissal automatically unfair, whereas a breach of the new ACAS Code will be taken into account where relevant to the overall question of fairness.
As long as the old grievance procedure was followed, failure to follow a procedural requirement (such as timing of meetings) would not of itself make a dismissal unfair if the employer proved that it made no difference. Failure to follow a fair procedure under the new ACAS Code will make a dismissal unfair, unless an employer concluded reasonably at the time that the procedure would have been “utterly useless” or “futile”.
Finally, failure under the old grievance procedures to follow “supplementary requirements” of the procedures (such as taking action within a reasonable time) did not amount to breach of the procedure and did not lead to a finding of automatic unfair dismissal, whereas under the new ACAS Code a failure to follow any procedural and case law requirements (such as taking action within a reasonable time) may lead to a finding of normal unfair dismissal.

Checklist

Employers need to be aware that a much fuller checklist now has to be at a disciplinary hearing. The employee must have the following opportunities.

1	Set out his case
2	Answer the allegations
3	Ask questions
4	Present evidence
5	Call relevant witnesses
6	Raise points about information provided by witnesses

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