Statutory dispute resolution procedures: questions and answers

Rachael Wright, of Osborne Clarke, answers questions on some of the detail relating to the new statutory procedures for workplace dispute resolution, which come into effect on 1 October 2004.

If a grievance or disciplinary procedure has begun before the new laws come into force on 1 October 2004, will the new statutory procedures apply?

No. Whilst the new grievance procedure may apply to a grievance concerning action that took place before 1 October, it will do so only if the action complained of continues after 1 October, and the employee has not raised the grievance before that date.

The new dismissal and disciplinary procedure will apply in only those cases where the employer first contemplates dismissing or taking disciplinary action on or after 1 October. Thus, if an employer contemplated dismissal or disciplinary action before 1 October, the new dismissal and disciplinary procedure will not apply.

Must an employer comply with the disciplinary and dismissal procedure when issuing a disciplinary warning?

No. Controversially, employers need not comply with the new statutory disciplinary and dismissal procedure when issuing a warning. The Government did not want to force employers to go through a 'cumbersome' procedure when issuing a warning. Employee representatives have criticised this thinking, on the basis that disciplinary warnings are the most common type of disciplinary action.

Does the submission of a discrimination questionnaire count as an initiation of the grievance procedure?

No. Individuals who have reason to believe that they are subject to unlawful discrimination on the basis of sex, sexual orientation, religion or belief, race or disability may serve a questionnaire on their employer requesting further information. The Employment Act 2002 (Dispute Resolution) Regulations 2004 specifically state that this will not count as an initiation, or step one, of the grievance procedure.

What is the position if an employee does not attend the meeting arranged to discuss the grievance or disciplinary issue?

If it is not reasonably practicable for the employee or his or her companion to attend the meeting, then the employer must propose an alternative time for the meeting. However, if, when the meeting was arranged, the employee could have foreseen that he or she, or the chosen companion, would be unable to attend the meeting, the employer need not arrange another meeting. The employee will be deemed to have failed to comply with the procedure and any compensation that may be awarded to him or her by an employment tribunal may be reduced as a result.

The employer is not obliged to organise more than two meetings, so if the employee fails to attend both the first and the second meeting, then it need not organise a third.

Who can accompany an employee to a hearing?

The Employment Relations Act 1999, section 10 gives workers a right to be accompanied to disciplinary and grievance hearings by a fellow worker or trade union official. An employer does not have to allow a legal adviser to be a companion.

Which procedure applies when the grievance concerns a disciplinary action or a dismissal?

The Employment Act 2002 (Dispute Resolution) Regulations 2004 state that only one of the new statutory procedures (either the disciplinary or the grievance procedure) may be used. Where the grievance concerns a dismissal or disciplinary action other than a warning or suspension upon full pay, the employee should appeal under the disciplinary procedure. He or she should not raise a grievance under the statutory grievance procedure.

Next week's article will be the first of a series of articles looking at employee fraud.

Rachael Wright, senior associate at Osborne Clarke (rachaelwright@osborneclarke.com)

Further information on Osborne Clarke can be accessed at www.osborneclarke.com