UK: Transitional Provisions Of The Employment Act 2008

Last Updated: 13 February 2009
Article by Gemma Herbertson and Robert Davies

You are likely to know by now that from 6 April 2009, the statutory dispute procedures will no longer apply. What you may not know, however, is that the statutory procedures do not disappear overnight: as different rules apply to disciplinary and grievance, the dispute procedures will continue to have an impact for several months to come. In this article we will examine the transitional provision of the Employment Act 2008 (the Act) governing the demise of the statutory procedures and the consequences for employers.

The transitional provisions are contained in The Employment Act 2008 (Commencement No.1, Transitional Provisions and Savings) Order 2008.

What does the repeal of the statutory procedures mean?

Subject to transitional provisions (see below), the statutory procedures cease to exist from 6 April 2009. This means that dismissals will no longer be automatically unfair in respect of a procedural failure. It also means that employees no longer have to lodge a grievance before raising most employment tribunal claims.

Further, compensation will no longer be adjusted between 10% and 50% in respect of a failure on the part of an employee or employer to comply with the statutory procedures.

The statutory procedures will from 6 April 2009 be replaced by a new ACAS Code of Practice. Employment Tribunals must have regard to the Code when determining the fairness of a dismissal and can also adjust compensation in respect of breaches of the Code by up to 25%.

What if disciplinary/dismissal or grievance procedures are in progress on 6 April 2009?

This means that transitional provisions, which retain the strict requirements of the statutory procedures, are likely to apply. Different rules apply in respect of discipline/dismissal and grievances.

What are the transitional rules in respect of disciplinary/dismissal matters?

If an employer has taken certain steps before 6 April 2009, the statutory procedures will continue to apply. These "trigger events" are:

  1. sending a letter to the employee outlingin the allegation or other circumstances which have led the employer to proposing to dismiss the employee; or
  2. has a meeting with the employee to discuss the proposed dismissal; or
  3. the dismissal/disciplinary action has taken place.

What if only one of the "trigger events" apply?

The statutory procedures will continue to apply even if only one of the "trigger events" have occurred before 6 April 2009.


Situation 1

On 1 April 2009 an employer meets with an employee to inform him that he is 'at risk' of redundancy in a situation when the collective consultation rules do not apply. The employee is handed a letter confirming this in writing and the reasons why the redundancy situation had arisen.

The statutory procedures will continue to apply to this dismissal procedure after 6 April 2009 as the "trigger event" at Point 1 above has occurred.

Situation 2

On 3 April 2009, a line manager has a meeting with an employee who is underperforming and who the line manager wishes to dismiss. The employee is advised of this proposal at the meetings and previously had no idea that there was a problem with her performance. Nothing has been put in writing to the employee and the line manager plans to communicate the decision to dismiss next week once he has had a chance to speak to HR about what procedure he should follow.

The statutory procedures will continue to apply to this dismissal procedure after 6 April 209 as the "trigger event" at Point 2 above has occurred (even though the "trigger event" at Point 1 has not occurred).

Situation 3

On 5 April 2009 an employee is caught red handed stealing and is verbally abusive to the line manager who challenged him leaving the premises. The line manager dismisses the employee on the spot.

The line manager contacts the HR department the next day to find out if he was to follow up with the employee in writing.

The statutory procedures will continue to apply to this dismissal procedure following 6 April 2009 as the "trigger event" at Point 3 above has been complied with (even though the "trigger events" at Point 1 and Point 2 have not occurred). The employer should follow the "modified dismissal procedure" and send the employee a letter advising the individual of the reasons for the dismissal and offering the employee the right of appeal.

What are the transitional rules in respect of grievances?

This depends on the date of the act complained of. If the act complained of took place before 6 April 209, the statutory procedures continue to apply. An act complained of which took place on or after 6 April 2009 does not require compliance with the statutory grievance procedures.


An employee believes she was sexually harassed by the owner of the Company at a work related event on 14 February 2009. She was very upset by the incident and it takes her until 7 April 2009 to raise a grievance in respect of the matter.

The statutory procedures will continues to apply to this grievance procedure following 6 April 2009 as the "trigger event" – the alleged incident of harassment – took place before 6 April 2009.

What if that act complained of began before 6 April 2009 but continues after 6 April 2009?

If the action complained of starts on or before 5 April 2009 and is ongoing following that date, the statutory procedures will continue to apply where the employee submits a written grievance or tribunal claim:

  1. on or before 4 July 2009 if the relevant claim has a 3 month time limit (which is the case for most employment claims); or
  2. on or before 4 October 2009 if the relevant claim has a 6 months time limit.


Two employees believe that they are being bullied at work.

Employee 1 resigns on 3 July 2009 and Employee 2 resigns on 5 July 2009.

Both letters of resignation incorporate a grievance against the Company. The employees allege that between January 2009 and the date of their resignation they were subject to verbal abuse and intimidation by their line manager. They point to a number of specific events which are spread across this time period. There is a statement that they intend to being claims for constructive unfair dismissal (which has a 3 month time limit). The employer needs to consider whether the statutory grievance procedures apply.

Employee 1

The statutory procedures apply to the grievance raised by Employee1. This is because the act complained of commenced before April 6 2009 and continued thereafter, and the employee raised a grievance before 4 July 2009.

Employee 2

The statutory procedures will not apply to the grievance raised by Employee2. Although the act complained of commenced before 6 April 2009 and continued thereafter, the employee did not raised a grievance before 4 July 2009.

Gemma Herbertson
Dundas & Wilson LLP

Robert Davies
Dundas & Wilson LLP

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

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

In association with
Related Topics
Related Articles
Related Video
Up-coming Events Search
Font Size:
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
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
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 (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

To Use 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.


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.


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