UK: Focus on Dispute Resolution: the New Law

Last Updated: 8 September 2004
Article by Christopher Booth

Originally published August 2004

One major aim of the Employment Act 2002 was to reduce the number of Employment Tribunal applications by obliging employers and employees to try to resolve disputes internally through domestic procedures before going to Tribunal. This may be laudable, but its implementation has proved extremely complicated. As well as new Dispute Resolution Regulations, major revisions have had to be made to unfair dismissal law, the ACAS Code and the Employment Tribunal rules of procedure. The result, in place from October 1 2004, is a complex statutory maze, full of exceptions and conditions that will give rise to much uncertainty and litigation.

Dual Procedural Standards

Part of the problem is the sheer complexity of the new Regulations, which prescribe in great detail minimum procedural standards; and part because these Regulations do not replace, but sit uneasily alongside, the existing law of unfair dismissal, set out in the Employment Rights Act and illustrated by the ACAS Code. There are many situations where compliance with the new minimum standards will not be enough to ensure a fair dismissal procedurally. Because of this, it would be a mistake to revise existing procedural standards down to the level of the new statutory minimum, and attempt to operate at that level. Instead, existing procedural standards should be maintained but will almost certainly require adjustment in points of detail to ensure compliance with new statutory regime.

In addition it will not be enough just to have procedures: they will have to be followed scrupulously under the new regime. Whereas in the past, employers could often excuse lapses when taken in an overall context of reasonableness, lapses from the new minimum standards are punished severely; dismissals are automatically unfair, and compensation increased.

We highlight below some of the detailed points which employers should consider when reviewing their existing procedures to see what changes are necessary to ensure compliance with the new regime.

Discipline and Dismissal

Scope of the New Procedures

The statutory procedures apply if the employer is considering dismissing the employee and also to disciplinary action short of dismissal, such as suspension without pay, demotion, disciplinary transfers or loss of seniority/pay. They do not apply to the issuing of warnings - although it is important to appreciate that if the outcome is in doubt and dismissal is a possibility then they will apply, even if only a warning actually results.

In addition, do not assume the new procedures apply only to disciplinary dismissals. In fact they cover a number of other types of dismissal (including capability dismissals, the expiry of fixed term contracts and small scale redundancies).

Investigatory Meetings

Ensure investigatory meetings (which do not attract the right to be accompanied or the statutory procedural requirements) do not turn into disciplinary meetings.

For example, if an employee admits misconduct during such a meeting, it can be very tempting to move straight to the appropriate sanction, but that would not comply with the statutory safeguards.

Advance Warning of Meetings

If the new procedures apply, advance warning of meetings must be given, in writing, summarising the allegations against the employee or the relevant circumstances, with copies of any relevant documents where possible. The revised ACAS Code recommends reminding the employee of their right to be accompanied in the pre meeting letter.

Fixing the Time

Like all steps under the statutory procedure, the meeting ‘must take place without unreasonable delay’. However, the meeting must not take place until ‘the employee has had a reasonable opportunity to consider his response’. (In practice at least two working days is probably a minimum for a reasonable opportunity - and longer if the information is complex.) The meeting must be fixed for a reasonable time and place; the employee is under a duty to attend.

The revised ACAS Code says timing and location should be agreed with the worker where possible. At the very least, management should consult the employee and consider any difficulties raised. The revised ACAS Code also recommends allowing any companion to have a say in the date and time of a hearing. If the companion cannot attend on a proposed date, the worker must suggest another date that must suit everyone involved and be not more than 5 working days after the original date.

Postponing Meetings

Once a meeting has been fixed, any postponement need only be allowed for unforeseen circumstances - illness, or a car breakdown, for example. In such cases a second meeting should be arranged, but no further postponements need be allowed (though even this could be challenged as unfair if clear evidence of a compelling reason was produced). Employees should be warned that if there is no valid reason for non-attendance, decisions may be taken in their absence.

Conduct of Meetings

‘Meetings must be conducted in such a manner that allows both employer and employee to explain their cases’. The revised ACAS Code recommends allowing the worker or companion ‘to participate as fully as possible in the hearing, including asking witnesses questions’. This implies a right to cross examine, which is not currently established by cases on reasonableness under current law.

Grievance Procedures

The principal feature of the new regime on Grievance Procedures is the requirement that employees use the grievance procedure internally before they can take a Tribunal case. A common complaint, particularly for discrimination cases, is that the first the employer knows of a problem is on receipt of the Tribunal Application. If used constructively, the opportunity to address concerns internally could be a considerable benefit to employers.

Again, the regime is complex and full of exceptions. Three particular practical implications are mentioned here:

  • The new regime requires formal grievances to be put in writing. Employees can be reluctant to do this (and some may find it difficult): ACAS recommend encouraging employees to seek help with this, from a colleague, representative or the CAB;
  • The rules for grievance meetings are similar to those above for disciplinary meetings. The written response should be given ‘without unreasonable delay’: ACAS suggest ‘five days is usually enough’. Many employers struggle to deal with grievances this promptly; and
  • Ex Employees Grievances from ex employees are often disregarded, yet employees must now submit these before taking a constructive dismissal or discrimination claim, for example. A failure by employers to consider them properly through procedure will strengthen the employee’s position and may lead to increased compensation.

Further Guidance

While this Bulletin can only highlight some of the main features of this complex legislation, we have prepared an Information Pack which contains:

  • a set of four factsheets highlighting the impact of the statutory procedures
  • a ‘Health check’ Questionnaire which you can use to identify areas of risk under the new rules
  • details of our training programme for HR professionals and managers
  • details of our ‘Step by Step Guide’ to handling dismissals, disciplinary issues and grievances.

If you would like to receive the pack, please let us know.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
 
In association with
Related Topics
 
Related Articles
 
Related Video
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions