Employment Act: disputes overlapping commencement date
The Employment Act 2008 is set to repeal the statutory dispute resolution procedures on 6 April 2009. Consultant editor Darren Newman looks at the draft transitional provisions dealing with the position where an employer contemplates dismissal before 6 April, or where the action complained about by an employee occurs or begins prior to this date.
The Employment Act 2008 received royal assent on 13 November 2008 and will come into force in stages. The most important provision in the Act is the abolition of the statutory disciplinary and grievance procedures, and a return of the law on unfair dismissal and procedural fairness to the pre-October 2004 position. This provision is expected to come into force on 6 April 2009. Those who are relatively new to HR and employment law will have some research to do. However, they will find that, after April 2009, the law will be based more on common sense and less bogged down in needless technicality.
However, the procedures will not simply be switched off in April 2009. When the commencement order is published, it will lay down transitional arrangements covering disciplinary and grievance issues that overlap the commencement date. In a consultation run over the summer - Dispute resolution: secondary legislation consultation (PDF format, 353K) (on the BERR website) - the government published draft transitional provisions. Under these, the grievance procedures (and associated provisions) will continue to apply where the action about which the employee is complaining took place before the commencement date. Where the issues complained about begin before the commencement date, but continue after it, the procedures will still apply provided that the employee raises the grievance (or complains to the tribunal) by 4 July 2009 (4 October 2009 in redundancy payment or equal pay claims).
In relation to the disciplinary procedures, the draft transitional provisions state that the procedures will apply where the employer "contemplates" dismissing or taking other disciplinary action against the employee before 6 April 2009.
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. We can expect to see tortuous arguments about just when the events that are the basis of the grievance took place and accusations from employees that their employer first "contemplated" dismissing them much earlier than the employer claims.
Alongside the new Act, we have the final version of the revised "Acas code of practice on discipline and grievance". The significance of this code is that an unreasonable failure to follow its provisions will result in a potential adjustment of compensation (upwards or downwards) of up to 25%.
Or at least that is what we have all assumed. An admittedly pedantic reading of the Act may cast some doubt on this. The Act does not refer to the code specifically, but refers to breach of a "relevant code of practice", which is defined as one "which relates exclusively or primarily to procedure for the resolution of disputes". A grievance procedure certainly fits that bill. However, the Acas code is primarily about the procedure to be followed by an employer before dismissing or taking action against an employee for misconduct or poor performance. Is that really a "procedure for the resolution of disputes"? When an employer investigates gross misconduct and holds a disciplinary hearing, is the employer seeking to resolve a dispute? The commonsensical answer is no. The employer is deciding whether or not to take action, and Acas recommends that such a decision should be taken only after appropriate procedural steps. A disciplinary process is not a method of dispute resolution. On the contrary, it is a common cause of disputes resulting in claims of unfair dismissal. My guess is that such a technical argument will not ultimately win out over the overwhelming assumption, reflected in the parliamentary debates, that the Acas code is a relevant code of practice. However, someone is bound to raise it.
In any event, there will inevitably be a flurry of cases where one side tries to argue a lack of compliance with the Acas code. My instinct, however, is that when the dust settles we will see an adjustment in compensation only in cases where the breach of the code is flagrant. Tribunals are unlikely to be sympathetic to pedantic points about mere technical breaches. Employers that ensure that issues are properly investigated and that employees are given a fair chance to explain their case or improve their performance are unlikely to be on the receiving end of an uplift in compensation.
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