The Employment Act 2008 – A Critical Overview Dispute Resolution & Tribunal Procedures: Overview of the New Procedures IER Conference 2009 _______________________

Summary of the changes Previous procedures will be repealed from 6 April 2009 Previous procedures will be repealed from 6 April 2009 No automatically unfair dismissal No automatically unfair dismissal Failure to lodge grievance does not prevent a claim Failure to lodge grievance does not prevent a claim ACAS Code of Practice sets out basic minimum standards for employers & employees to resolve disputes in the workplace ACAS Code of Practice sets out basic minimum standards for employers & employees to resolve disputes in the workplace

Summary of the changes cont’d Potential for uplift or reduction in compensation of 25% depending upon compliance or otherwise with the ACAS Code Potential for uplift or reduction in compensation of 25% depending upon compliance or otherwise with the ACAS Code No extensions to time limits – key lesson for TUs No extensions to time limits – key lesson for TUs

ACAS Code of Practice No mandatory “3 step” procedures for dismissals or grievances; No mandatory “3 step” procedures for dismissals or grievances; TULRCA amended so that failure to follow ACAS Code of Practice may result in uplift or reduction to compensation TULRCA amended so that failure to follow ACAS Code of Practice may result in uplift or reduction to compensation Both employers and employees have duties under the Code of Practice Both employers and employees have duties under the Code of Practice Code pdf at Code pdf at

ACAS Code of Practice cont’d Code supplemented by Guidance Code supplemented by Guidance Applies to conduct and capability dismissals Applies to conduct and capability dismissals Applies to all non-dismissal claims for which it was previously necessary to raise a grievance, i.e. most non-dismissal claims Applies to all non-dismissal claims for which it was previously necessary to raise a grievance, i.e. most non-dismissal claims

General Requirements Issues should be raised and dealt with promptly Issues should be raised and dealt with promptly Parties should act consistently Parties should act consistently Employers should carry out necessary investigations to establish facts Employers should carry out necessary investigations to establish facts Right to be accompanied to meetings Right to be accompanied to meetings Appeal procedures should be made available and used Appeal procedures should be made available and used Where grievance raised during disciplinary process, employer may suspend to deal with grievance or deal with both at same time if appropriate Where grievance raised during disciplinary process, employer may suspend to deal with grievance or deal with both at same time if appropriate

Dismissals – Employer responsibilities Carry out investigations and hold meetings without delay Carry out investigations and hold meetings without delay Keep suspension periods as brief as possible Keep suspension periods as brief as possible Notify employee in writing of the case against them and possible consequences as well as time and venue for disciplinary meeting Notify employee in writing of the case against them and possible consequences as well as time and venue for disciplinary meeting Provide copies of any written evidence including witness statements Provide copies of any written evidence including witness statements

Dismissals – Employer responsibilities cont’d At the hearing, explain the complaint to the employee and give an opportunity to put case At the hearing, explain the complaint to the employee and give an opportunity to put case Give employee a reasonable opportunity to ask questions present evidence and call witnesses. Advance notice to be given of witnesses Give employee a reasonable opportunity to ask questions present evidence and call witnesses. Advance notice to be given of witnesses Different people to carry out investigation, disciplinary and appeal hearing where possible Different people to carry out investigation, disciplinary and appeal hearing where possible Inform employee of any action in writing Inform employee of any action in writing

Dismissals – Employer responsibilities cont’d If dismissal, must give reasons for dismissal, termination date and right of appeal If dismissal, must give reasons for dismissal, termination date and right of appeal Where employee persistently unwilling or unable to attend, employer entitled to make decision on evidence available Where employee persistently unwilling or unable to attend, employer entitled to make decision on evidence available Appeals to be heard without delay at an agreed time and place Appeals to be heard without delay at an agreed time and place Inform employee of outcome of appeal as soon as possible in writing Inform employee of outcome of appeal as soon as possible in writing

Dismissals – Employee responsibilities Not unreasonably delay & make all efforts to attend meetings (and also consider “right to be accompanied” provisions) Not unreasonably delay & make all efforts to attend meetings (and also consider “right to be accompanied” provisions) Notify employer in advance of any witnesses to be called Notify employer in advance of any witnesses to be called In most situations, appeal in writing against a decision that they consider to be wrong In most situations, appeal in writing against a decision that they consider to be wrong

Grievances – Employer responsibilities Hold a formal meeting without delay Where possible, manager not involved with case should hear it Hold a formal meeting without delay Where possible, manager not involved with case should hear it Make every effort to attend the meeting Make every effort to attend the meeting Allow employee to explain grievance Allow employee to explain grievance Adjourn and investigate if necessary Adjourn and investigate if necessary Communicate decision in writing without unreasonable delay Communicate decision in writing without unreasonable delay

Grievances – Employer responsibilities cont’d Inform of right to appeal Inform of right to appeal Hear appeals without unreasonable delay Hear appeals without unreasonable delay Wherever possible have a different manager hear the appeal Wherever possible have a different manager hear the appeal Communicate the outcome of the appeal in writing without delay Communicate the outcome of the appeal in writing without delay

Grievances – Employee responsibilities Try informal resolution first, + ASAP Try informal resolution first, + ASAP If matter can’t be dealt with informally, raise the matter formally and without unreasonable delay If matter can’t be dealt with informally, raise the matter formally and without unreasonable delay Put grievance in writing and set out nature of the grievance Put grievance in writing and set out nature of the grievance Make every effort to attend meetings Make every effort to attend meetings Appeal if not satisfactorily resolved giving grounds of appeal Appeal if not satisfactorily resolved giving grounds of appeal

Collective Grievances Different arrangements apply for ‘collective grievances’ Different arrangements apply for ‘collective grievances’ Code defines as: “grievances raised on behalf of two or more employees by a representative of a recognised trade union or other appropriate workplace representative”.. [not defined] Code defines as: “grievances raised on behalf of two or more employees by a representative of a recognised trade union or other appropriate workplace representative”.. [not defined]

Collective Grievances cont’d Industrial prerequisites for a collective grievance Industrial prerequisites for a collective grievance Issue common to a group of members Issue common to a group of members Authority from the group purported to grieve Authority from the group purported to grieve Collective grievances should be raised in accordance with existing procedure Collective grievances should be raised in accordance with existing procedure No uplift/reduction in compensation! No uplift/reduction in compensation!

Dismissal and grievance arising together A dismissal might give rise to a claim other than unfair dismissal (such as discrimination) A dismissal might give rise to a claim other than unfair dismissal (such as discrimination) Alternatively there might be incidents of discrimination or other money claims which are linked to dismissal Alternatively there might be incidents of discrimination or other money claims which are linked to dismissal Raise appeal and grievances in same letter and ask for them to be heard together Raise appeal and grievances in same letter and ask for them to be heard together If grievance not linked to dismissal, send a separate grievance letter If grievance not linked to dismissal, send a separate grievance letter

Time Limits Extensions to time limits will no longer apply Extensions to time limits will no longer apply All claims must be submitted within primary limitation period All claims must be submitted within primary limitation period Try to lodge appeal or grievance well before submitting the claim if possible Try to lodge appeal or grievance well before submitting the claim if possible

Right to be Accompanied Provisions of S.10 Employment Relations Act 1999 apply Provisions of S.10 Employment Relations Act 1999 apply Code explains but does not add to current statutory procedures Code explains but does not add to current statutory procedures Right to be accompanied to grievance and disciplinary hearings Right to be accompanied to grievance and disciplinary hearings Right to have meeting rearranged within 5 working days if representative can’t attend Right to have meeting rearranged within 5 working days if representative can’t attend

Transitional Arrangements “Old” dismissal/disciplinary procedures apply where Step 1 letter sent or Step 2 meeting held or where dismissal /disciplinary action has taken place before 6 April 2009 “Old” dismissal/disciplinary procedures apply where Step 1 letter sent or Step 2 meeting held or where dismissal /disciplinary action has taken place before 6 April 2009 “Old” grievance procedures apply where conduct giving rise to grievance is completed or starts on or before 5 April 2009 if a Step 1 letter or an ET1 is presented before 4 July 2009 (4 October 2009 for equal pay and redundancy claims) “Old” grievance procedures apply where conduct giving rise to grievance is completed or starts on or before 5 April 2009 if a Step 1 letter or an ET1 is presented before 4 July 2009 (4 October 2009 for equal pay and redundancy claims) Otherwise new procedures will apply from 6 April 2009 Otherwise new procedures will apply from 6 April 2009

Conciliation and mediation Code theme: informal – ‘workplace’ – mediation [see Guide pp.7-8 esp. grievances] Code theme: informal – ‘workplace’ – mediation [see Guide pp.7-8 esp. grievances] Union involvement? Union involvement? Fixed conciliation periods abolished Fixed conciliation periods abolished

Better or worse? Removal of draconian requirement to lodge grievance before submitting certain types of ET claim Removal of draconian requirement to lodge grievance before submitting certain types of ET claim Removal of partial reversal of Polkey Removal of partial reversal of Polkey Focus continues to be on resolution of disputes in the workplace Focus continues to be on resolution of disputes in the workplace

Better or worse cont’d Non-application to collective grievances & other loose ends on collective grievances Non-application to collective grievances & other loose ends on collective grievances Transitional arrangements Transitional arrangements Length of Code plus guidance Length of Code plus guidance Status of Code & guidance Status of Code & guidance Omissions from 2008 Code Omissions from 2008 Code

Better or worse cont’d Lack of clarity re whether dismissals are grievances Lack of clarity re whether dismissals are grievances Which types of dismissals other than conduct & capability does the Code apply to? Which types of dismissals other than conduct & capability does the Code apply to? Exclusion of redundancy dismissals Exclusion of redundancy dismissals Less strongly worded provisions re uplifts/reductions Less strongly worded provisions re uplifts/reductions