17 February 2009
InBusiness - eBulletin
Grievance and disciplinary measures - exactly what is reasonable?
New proposals for dealing with grievance and disciplinary matters in the workplace are coming into force in April, under the Employment Act 2008.
The Act annuls the current provisions that deal with dispute resolution in the workplace. The existing rules have been widely criticised as having led to an increase in claims and being extremely complex in their application.
Under the new laws Employment Tribunals will have the discretion to increase compensation by up to 25% if an employer unreasonably fails to comply with the new ACAS Code of Practice on Grievance and Disciplinary Procedures. The same will apply, conversely, if an employee fails to comply.
Ursula Kelland, Employment lawyer, says: “Compliance with the Code is likely to be the safest way for employers to avoid having to pay financial penalties on compensation. We therefore advise all employers to ensure that they have written, up-to-date policies in place and that employees and managers are clear about the new rules and procedures and receive training where appropriate.“
The Code sets out guiding principles for handling grievance and disciplinary situations in the workplace and intends to provide ‘the standard of reasonable behaviour in most instances’.
Key characteristics of this are that:
- Employers and employees should raise and deal with any issues promptly.
- Employers and employees should act consistently.
- Employers should carry out any necessary investigations to establish the facts of the case.
- Employers should inform employees of the basis of the problem and give them an opportunity to put their case in response before any decisions are made.
- Employers should allow employees to be accompanied at any formal disciplinary, grievance or appeal meeting.
- Employees have the right to appeal against any formal decision.
The issues
Hart Brown points out, however, that employers should be aware that although the Code was intended to be less prescriptive than the current regime, it does consist of 45 paragraphs of detailed principles and is therefore not quite as straightforward as it ‘says on the tin’.
Since this is new law it is not yet clear what Employment Tribunals will, or will not, consider to be an ‘unreasonable’ breach of the Code and therefore how strictly it should be adhered to.
There are concerns that, rather than promoting dispute resolution, this could result in adding fuel to litigation between employers and employees. Employers do not tend to like the concept of ‘reasonableness’ in any case, since it does not give a definitive answer as to what is or is not acceptable in a particular set of circumstances.
Rather unhelpfully, the new rules also do not explain any of the factors which Employment Tribunals should consider in determining the amount of uplift to be awarded in the event of an unreasonable breach. This may lead to inconsistent Tribunal decisions being made across the country – and the application of the rules becoming a postcode lottery.
If you require any further information about the Employment Bill or would like us to review your procedures please contact Ursula Kelland on 01484 887766 or email Ursula.kelland@hartbrown.co.uk