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.

Examples:

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.

Example:

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.

Example:

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
Gemma.herbertson@dundas-wilson.com

Robert Davies
Dundas & Wilson LLP
Robert.davies@dundas-wilson.com

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

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