Topic of the week: Changes to disciplinary and grievance procedures FAQs

In this week's topic of the week article, Tina Maxey of Steeles (Law) LLP answers some frequently asked questions on changes to the law on disciplinary and grievance procedures. 

Questions on the revised Acas code of practice on disciplinary and grievance procedures are answered. 

Previous articles in this topic of the week series

Changes to disciplinary and grievance procedures: overview The effects of the impending repeal of the statutory dispute resolution procedures and the new Acas code of practice are explained. 

Changes to disciplinary and grievance procedures: Acas code and guide The principles in the revised Acas code of practice, with which employers and employees will be required to comply, are included. 

More from XpertHR on disciplinary and grievance procedures and related topics

XpertHR subscribers have access to a wealth of material on disciplinary and grievance procedures and related topics - ranging from FAQs on the role of the companion at disciplinary and grievance hearings to policies and documents to help with the handling of discipline, dismissal and employee grievances. We pick out just some of the information available on the subject. 

Repeal of the statutory dispute resolution procedures and the Employment Act 2008

Few employers will be unaware of the fact that the statutory dispute resolution procedures are being repealed on 6 April 2009. In The abolition of the statutory dispute resolution procedures, from IRS Employment Review, Darren Newman looks at the practical implications of the repeal of the statutory dispute resolution procedures for employers. In another article from IRS Employment Review - New Acas code of practice on disciplinary and grievance procedures - he examines the provisions of the code that effectively replaces the statutory procedures, and with which employers and employees will be expected to comply. 

The repeal is brought about by provisions in the Employment Act 2008. However, this repeal is not the only effect of the 2008 Act. See Darren's article on The Employment Act 2008 (also from IRS Employment Review) for an overview of the repeal and other measures in the Act. 

The repeal of the statutory dispute resolution procedures will herald the return of the Polkey principle that, other than in exceptional circumstances, a dismissal will be unfair if the employer fails to follow a fair procedure, even if this makes no difference to the outcome. See the report of this landmark decision for unfair dismissal law in the XpertHR case reports section (Polkey v AE Dayton Services Ltd (formerly Edmund Walker (Holdings) Ltd) [1987] IRLR 503 HL). 

Disciplinary and dismissal procedures

For a detailed look at the legal requirements in relation to disciplinary procedures see the Disciplinary rules and procedures section of the XpertHR employment law manual. Failure to follow a fair procedure impacts on the fairness of the dismissal. The Unfair dismissal rights on termination section in the manual explains the potential consequences of getting it wrong. 

Use XpertHR's model policies and documents on disciplinary procedures to ensure legal compliance when addressing disciplinary situations, for example:

See also How to manage disciplinary rules and procedures for a step by step guide and the Good practice guide: Handling discipline for a more detailed look at best practice for handling discipline at work. 

There are also a number of FAQs on XpertHR answering specific questions about disciplinary action:

Disciplinary warnings are an essential feature of the disciplinary process and dismissals normally occur only where an employee has committed an act of gross misconduct or is under a current final written warning and commits further misconduct. However, the Court of Appeal in Airbus UK Ltd v Webb [2008] IRLR 309 CA, which is reported in the XpertHR case reports section, held that a dismissal was not necessarily unfair when the employer took into account an expired final warning. 

Grievance procedures

The repeal of the statutory grievance procedures will end the requirement for employees to raise a formal grievance to be able to bring a subsequent claim in the employment tribunal. However, it is still important for employers to have a sound grievance procedure in place so that issues can be resolved fairly and consistently. The procedure should comply with the principles outlined in the revised Acas code of practice on disciplinary and grievance procedures. See the Grievance procedures section of the XpertHR employment law manual for more details. 

XpertHR's policies and documents section includes a variety of resources on Grievance procedures to help employers, for example:

There are also cases reported in the XpertHR case reports section, including WA Goold (Pearmak) Ltd v McConnell and another [1995] IRLR 516 EAT, in which the EAT recognised that employers have a general implied contractual duty to provide a means of redress for grievances. Failure to do so could amount to a breach of that duty, entitling an employee to resign and claim constructive dismissal. However, in Claridge v Daler Rowney Ltd [2008] IRLR 672 EAT, the EAT held that the employer's handling of the grievance procedure will amount to a breach of contract only where it fell outside the range of reasonable responses open to the employer.