6th April is fast approaching. That's the day when we say goodbye to the statutory dispute resolution procedures and hello to the new ACAS Code of Practice on Discipline & Grievance.  Sadly, however, it will not simply be a case of "out with the old, in with the new" and it is important to be aware of the transitional provisions which will apply. In summary they mean:

(a)   Statutory Disciplinary And Dismissal Procedures (DDPs)

The statutory DDPs will continue to apply after 6th April 2009 where:

  • on or before 5th April 2009, the standard or modified DDP applied; and
  • on or before that date, the employer has either:
    • dismissed or taken relevant disciplinary action against the employee; or
    • complied with Step 1 or 2 of the standard procedure, or Step 1 of the modified procedure.

For example, if an employee is dismissed for gross misconduct on 2nd April 2009 and the employee lodges an appeal on 7th April 2009, the statutory DDP will continue to apply. Similarly if you start the disciplinary process with a Step 1 letter before 6th April 2009 the current rules continue to apply to the whole process. 

(b) Statutory Grievance Procedures (GPs)

The statutory GPs will continue to apply after 6th April 2009 in two sets of circumstances.  These are:

  1. where the action that forms the basis of the employee's complaint occurs wholly before 6th April 2009;
  2. where the action forming the basis of the grievance begins on or before the 5th April 2009 and continues beyond that date, but only if the employee presents a complaint to a tribunal based on that grievance on or before 4th July 2009, for most types of claim, or 4th October 2009 in the case of an equal pay or redundancy pay claim.

For example, employee x is promoted on 1st April 2009, employee y is not. Employee y lodges a grievance about this on 9th April 2009.  The statutory grievance procedure will continue to apply.

The statutory procedures will, therefore, remain with us throughout most of 2009 and the courts and tribunals will still be dealing with them well into 2010. Over the last four and a half years the statutory procedures have created a lot of tortuous arguments and we can expect to see quite a few more about the transitional provisions, for example, just when the events that are the basis of a particular grievance took place.

Employers should look at whether their procedures need amendment in light of the repeal of the statutory procedures and also how they will deal with the transitional provisions.

MacRoberts are running training workshops which will include practical case studies, on the implications of the Employment Act 2008 and the new landscape for discipline and grievance resolution. For more information click here:

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Disclaimer

The material contained in this article is of the nature of general comment only and does not give advice on any particular matter. Recipients should not act on the basis of the information in this e-update without taking appropriate professional advice upon their own particular circumstances.

© MacRoberts 2009