Employment E-Missive No.14 - New Disciplinary and Grievance Procedure
Special
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by Charles Price, LLB.(hons) LLM, barrister
No5 Chambers,
Birmingham - Bristol - London
Telephone 0870 203 5555

www.no5.com
www.charlesprice.net
mailto:charlie@mediationsearch.fsnet.co.uk

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1.      New Grievance Procedures - Free! Detailed Seminar Notes
2.      Vital links on the New Law
3.      New Employment Tribunal Opens
4.      Model Contract - Disciplinary Procedure
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Charles Price practices in Respondent and Applicant work in England and
Wales. This e-mail is for academic purposes only. Legal considerations must
be looked at in the light of the particular circumstances and it may be wise
to seek legal advice.

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Seminar Notes      The New Statutory Grievance Procedures


1)      Timetable
----------------

The Changes to the law came into force on the 1st October of this year and
is contained in the, Employment Act 2002, which received Royal Assent on 8th
July 2002.  The Employment Act 2002 (Dispute Resolution) Regulations 2004 SI
2004/752. The Government has delayed bringing into force the framework, and
much of the detail was subject to a further public consultation and the
separate Regulations. The main reason for this delay is that the Act only
set out the procedures and the basic framework to a further public
consultation and the  separate Regulations. The Employment Relations Act
2004 deals with the role of a companion in the meetings. The ACAS Code on
Practice on Disciplinary and Grievance Procedures in the Workplace also came
into force on October 1st, which gives guidance on the new law and will be
considered by employment tribunals when reaching decisions on whether the
new law has been followed.


2)      Purpose of the New Law
-----------------------------

As from 1st October 2004, rules under Employment Act 2002 provide that an
employee (defined to include an ex-employee) will normally not be able to
bring an unfair dismissal claim (or most other claims) in an employment
tribunal unless he has first exhausted (statutory) minimum attempts to agree
an "out-of-court" settlement (see notes at Grievance procedures ). Combined
with new rules on disciplinary procedures , the result is that a
superficially quite modest development may turn out to be of enormous
practical significance - indeed it may herald the biggest single change to
the employment tribunal regime since it began in 1971. This will be so if it
results in many more cases being settled at an early stage and in simpler
cases never even coming into what has developed over the years into a pretty
well self contained employment tribunal legal system of a complexity never
intended by its originators

The main substantial changes are in relation to attempts to get employers
and employees to settle "out of court", changes to the costs rules to enable
tribunals to penalise misconduct by advocates (by ordering them personally
to pay costs) and in limited circumstances to award costs to cover
preparation time and a new power to conduct preliminary hearings by
telephone or video link.

The government issued a consultation paper in July 2003 interestingly, in
paragraph 145 of the response, the DTI states "The government acknowledges
that the Regulations are not simple..."  -  a far cry from the initial
policy aim of a simple, straightforward disciplinary procedure to remove
legal technicalities from the workplace.


3)      Penalties For Failure to Comply
-------------------------------------

S.31 Employment Act 2002 - Non-completion of statutory procedure: adjustment
of awards Subsection (2) If, in the case of proceedings to which this
section applies, it appears to the employment tribunal that- a) the claim to
which the proceedings relate concerns a matter to which one of the statutory
procedures applies, (b) the statutory procedure was not completed before the
proceedings were begun, and (c) the non-completion of the statutory
procedure was wholly or mainly attributable to failure by the employee- (i)
to comply with a requirement of the procedure, or (ii) to exercise a right
of appeal under it, it must, subject to subsection (4), reduce any award
which it makes to the employee by 10 per cent, and may, if it considers it
just and equitable in all the circumstances to do so, reduce it by a further
amount, but not so as to make a total reduction of more than 50 per cent.

(3) If, in the case of proceedings to which this section applies, it appears
to the employment tribunal that- (a) the claim to which the proceedings
relate concerns a matter to which one of the statutory procedures applies,
(b) the statutory procedure was not completed before the proceedings were
begun, and (c) the non-completion of the statutory procedure was wholly or
mainly attributable to failure by the employer to comply with a requirement
of the procedure, it must, subject to subsection (4), increase any award
which it makes to the employee by 10 per cent and may, if it considers it
just and equitable in all the circumstances to do so, increase it by a
further amount, but not so as to make a total increase of more than 50 per
cent.

From October 1st, unless the (statutory) minimum grievance procedure has
been used in an attempt to agree an "out-of-court" settlement, an employee
(or an ex-employee) is normally disqualified from bringing an unfair
dismissal claim, or most other claims, in an employment tribunal (Employment
Act 2002s.32). Under s32(3) An employee shall not present a complaint to an
employment tribunal under a jurisdiction to which this section applies if:
Less than 28 days have passed since the day on which the requirement was
complied with (i.e a first step letter). If an employee does not qualify to
bring a claim for unfair dismissal (e.g. because he or she has less than one
year's service) there is no penalty if the procedure is not followed.


Section 38 Employment Act 2002 - Failure to Give Statement of Employment
Particulars
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(1)     This section applies to proceedings before an employment tribunal
relating to a claim by an employee under any of the jurisdictions listed in
Schedule 5. (2) If in the case of proceedings to which this section applies-
(a) the employment tribunal finds in favour of the employee, but makes no
award to him in respect of the claim to which the proceedings relate, and
(b) when the proceedings were begun the employer was in breach of his duty
to the employee under section 1(1) or 4(1) of the Employment Rights Act 1996
(c. 18) (duty to give a written statement of initial employment particulars
or of particulars of change), the tribunal must, subject to subsection (5),
make an award of the minimum amount to be paid by the employer to the
employee and may, if it considers it just and equitable in all the
circumstances, award the higher amount instead. Written particulars must be
given to the employee either before employment starts or within two months
of commencement.

(2)     Under S.3 ERA (as amended by S.35 EA) the written particulars must
include a statement setting out the following: disciplinary rules; the
procedure that applies to any decision to dismiss or discipline an employee;
the person to whom the employee can appeal if dissatisfied with a decision
to discipline or dismiss him or her, or for the purpose of obtaining redress
of a grievance; and any further steps consequent on such an application. The
written particulars may alternatively refer the employee to a document, such
as an employee handbook, containing the above information, provided that the
document is reasonably accessible to the employee.

(3) If in the case of proceedings to which this section applies- (a) the
employment tribunal makes an award to the employee in respect of the claim
to which the proceedings relate, and (b) when the proceedings were begun the
employer was in breach of his duty to the employee under section 1(1) or
4(1) of the Employment Rights Act 1996, the tribunal must, subject to
subsection (5), make an award of the minimum amount to be paid by the
employer to the employee and may, if it considers it just and equitable in
all the circumstances, award the higher amount instead. (3) If in the case
of proceedings to which this section applies- (a) the employment tribunal
makes an award to the employee in respect of the claim to which the
proceedings relate, and (b) when the proceedings were begun the employer was
in breach of his duty to the employee under section 1(1) or 4(1) of the
Employment Rights Act 1996, the tribunal must, subject to subsection (5),
increase the award by the minimum amount and may, if it considers it just
and equitable in all the circumstances, increase the award by the higher
amount instead.  (4) In subsections (2) and (3)- (a) references to the
minimum amount are to an amount equal to two weeks' pay, and (b) references
to the higher amount are to an amount equal to four weeks' pay. (5) The duty
under subsection (2) or (3) does not apply if there are exceptional
circumstances which would make an award or increase under that subsection
unjust or inequitable.     (6) The amount of a week's pay of an employee
shall- (a) be calculated for the purposes of this section in accordance with
Chapter 2 of Part 14 of the Employment Rights Act 1996 (c. 18), and (b) not
exceed the amount for the time being specified in section 227 of that Act
(maximum amount of week's pay).


4)    The Law Pre - October 1st
-------------------------------

Before October 1st 2004 there was limited statutory requirement for
employers to have formal grievance and disciplinary procedures as part of a
contract of employment, although it was and is required for an employer to
demonstrate that his action in dismissing an employee is reasonable. The
only statutory mention of a grievance procedure was contained in (ERA 1996
s.3(3)) which, outlined that an employer who operated such a procedure must,
if he has 20 or more employees, include details of it in the written
particulars of employment he was obliged to give employees. There is
currently no financial penalty if the employer fails to comply but an
employee can apply to the tribunal under s11 for a declaration as to his
terms and conditions. Whether an employer has a formal grievance procedure
or not, every employer, regardless of size, had to include in every
statement of particulars of employment a note of the person to whom an
employee could apply for the purpose of seeking redress of any grievance
relating to his employment and the manner in which any such application
should be made (ERA 1996 s.3(1)(b)(ii)).


5)      The New Law
-------------------

Particulars of procedures relating to discipline or dismissal
            (1) Section 3 of the Employment Rights Act 1996 (c. 18) (note
about disciplinary rules and procedures) is amended as follows.
            (2) In subsection (1) (which requires a statement under section
1 of that Act to include a note specifying the disciplinary rules and
procedures applying to an employee), after paragraph (a) there is inserted-
                "(aa) specifying any procedure applicable to the taking of
disciplinary decisions relating to the employee, or to a decision to dismiss
the employee, or referring the employee to the provisions of a document
specifying such a procedure which is reasonably accessible to the
employee,".

            (3) In that subsection, in paragraph (b)(i) (which requires the
note to specify a person for the employee to apply to if he is dissatisfied
with a disciplinary decision) after "him" there is inserted "or any decision
to dismiss him".
            (4) In subsection (2) (which provides that the note does not
need to specify the rules and procedures relating to health and safety at
work) after "decisions," there is inserted "decisions to dismiss".


As from 1st October 2004, all employers, regardless of size, are obliged to
operate minimum statutory grievance procedures and the small employer
exemption from the need to provide details is abolished (ERA 1996 s.3(3) is
repealed under the Employment Act 2002 s.36, with s.54 and schedule 8).

S36 Removal of exemption for small employers
In section 3 of the Employment Rights Act 1996 (c. 18) (note about
disciplinary rules and procedures), subsections (3) and (4) (exemptions for
undertakings with less than 20 employees) shall cease to have effect.  7A
Use of alternative documents to give particulars(1) Subsections (2) and (3)
apply where- (a) an employer gives an employee a document in writing in the
form of a contract of employment or letter of engagement.

B) Harsh Penalties (Already covered above) Employees and employers should be
aware that from the 1st October 2004, they will face a harsh financial
penalty if they do not take advantage of the statutory grievance procedure
process introduced under Employment Act 2002.

Employer - Any award made to the employee is increased by 10 percent up to a
maximum of 50 percent.

Employee - Any award they are adjudged to receive is reduced by a minimum of
10 percent up to a maximum of 50 percent.

Barring employees from bringing tribunal claims if they have failed to
initiate a grievance procedure.

Time Limits
------------

From 1st October 2004 time limits for making applications to an employment
tribunal are extended to allow proper discussion between employer and
employee in implementing the grievance procedure.


The standard grievance procedure has three main elements:
· A written grievance by the employee, stating the basis of their complaint;
· A meeting, where a decision is communicated to the employee and the right
to appeal is explained.
· An appeal - an employee must inform the employer of their desire to
appeal - a meeting is held and the result communicated to the employee.

In order to facilitate the use of the DDPs and GPs, the Regulations provide
that in certain circumstances the normal time limit for bringing a tribunal
claim will be extended by three months.

The extension of time will only apply if a statutory GP (or DDP) applies and
so, if the case falls into one of the exceptions where no GP is applicable,
there can be no extension of time. There can be an extension of time where a
GP is applicable but is treated as having been completed under the
Regulations. This distinction seems likely to cause confusion among tribunal
applicants and will do little to improve the accessibility of tribunals,
since even the question 'when must I submit my application?' may be
difficult to answer without complex legal advice.

Assuming a statutory GP applies, Reg 15(1) and (3) increase the normal time
limit by three months in the following situations:

A) Where the employee has submitted a claim within the normal time limit but
that claim is inadmissible because the employee has not sent the Step 1
grievance letter. The employee must then submit the letter within one month
after the expiry of the normal time limit - S.32(4)(b). That section
actually uses the term 'original time limit' but it is assumed that this is
intended to bear the same meaning as 'normal time limit'. The claim must
then be resubmitted within three months of the normal time limit


B) Where the employee has sent the Step 1 letter within the normal time
limit but has not waited 28 days. The employee must wait the full 28 days
and resubmit the claim within 3 months of the normal time limit

C) Where the employee sends the Step 1 grievance letter within the normal
time limit and then submits a claim within three months of that time limit.

There is no need for the grievance procedure to be completed, or even for
there to be any further compliance with it after the grievance letter is
sent, in order for the extension of time to be triggered.

The 'normal time limit' in most cases is three months from the date of the
act complained of, except in EqPA cases when it is 6 months from the end of
employment. In many cases a tribunal has a discretion to extend time in
certain circumstances; this discretion is ignored in calculating the 'normal
time limit'. Thus, in a case of, say, race discrimination, the employee must
submit the grievance letter within three months of the act complained of if
he or she is to rely on the third example given above.

Although the DTI guidance suggests that there is a discretion for a tribunal
to consider a case if the letter was submitted late, in our view the
Regulations do not provide any such discretion. If the letter is submitted
on time and the time for bringing a claim is therefore extended to six
months, the tribunal will still have its usual discretion to extend that
time limit beyond six months. Thus, if a race discrimination claim was
presented 6 months and one week after the act complained of, it may still be
heard if the tribunal considers it 'just and equitable' to do so.


Who is Affected?
----------------

The statutory procedures only apply to 'employees' as defined in the
Employment Rights Act 1996, i.e. those who work under a contract of service
or apprenticeship

Definition of A Grievance
-------------------------

A 'grievance' is defined in Reg 2(1) as 'a complaint by an employee about
action which his employer has taken or is contemplating taking in relation
to him'.
This, on its face, is a fairly narrow definition in three respects. First,
it does not appear to cover complaints about the employer's conduct in
general or towards a third party, but only conduct 'in relation to' that
employee; secondly, there is no indication as to whether 'action' includes
an omission, i.e. a failure to take action; thirdly, nor is it entirely
clear to what extent a fellow worker's behaviour or that of a customer
constitutes 'action [the] employer has taken or is contemplating taking.'
The DTI guidance is optimistic and indicates that the definition of
grievance will cover 'the actions of a third party (e.g. a colleague) in
cases where the employer could be vicariously liable for those actions',
although there is no real basis given for this view. The precise scope of
the definition will be left for tribunals to determine, and it is hoped that
they will give a wide interpretation in order not to frustrate the purpose
of the legislation.

The Procedures
--------------

There are two GPs: a standard and a modified procedure, both of which are
subject to a number of 'general requirements'. The GPs and the general
requirements are set out in Schedule 2 to the EA, reproduced in full in Box
1. They apply to cases where the employee has a grievance about any action
by the employer that could form the basis of a tribunal complaint under a
jurisdiction listed in Schedule 3 or 4 to the EA - Reg 6(1).

As with dismissal and disciplinary procedures, it is important to note that
the statutory grievance procedures set out in the EA are intended not as a
best practice guide, but as a minimum legal standard. There is nothing to
stop employers operating a more comprehensive procedure (and many employers
already do), provided it includes all the steps contained in the relevant
statutory GP and fulfils all the general requirements.

 **** Standard Grievance Procedure ****

The default procedure is the standard GP which applies in all cases where
the employee has a grievance which could lead to a claim under any of the
jurisdictions listed in Schedule 3 or 4 to the EA (see Box 2), unless the
case is covered by one of the exceptions (see below) or the modified
procedure applies.
It has three basic steps: first, the employee submits a written grievance;
secondly, the employer holds a meeting to which the employee is invited,
prior to reaching its decision; and thirdly, the employee is given the right
to appeal against that decision, in which case a further meeting must be
held.

The employee's main obligations are:

·  to set out the grievance in writing to the employer
·  to inform the employer of the basis for the grievance
·  to take reasonable steps to attend any meetings
·  to appeal if dissatisfied with the decision.

Although the right of appeal is expressed in the GPs as being a right and
not an obligation on the employee, if an employee does not appeal he or she
is treated as not having completed a GP, and may find his or her
compensation reduced in any subsequent tribunal claim - S.31(2)(c).

The employer's main obligations are:
·  on receipt of the written grievance, to invite the employee to a meeting
at a reasonable time and place
·  to rearrange the meeting once if the employee or the employee's
representative cannot attend - see 'Rearranging meetings' below
·  to allow the employee to explain his or her case at the meeting
·  to notify the employee of the decision and the right of appeal
Box 1 - Workplace grievance procedures

Step 1: statement of grievance
*
The employee must set out the grievance in writing and ·  send the statement
or a copy of it to the employer.

Step 2: meeting
*
The employer must invite the employee to attend a meeting to discuss the
grievance.
* The meeting must not take place unless - (a) the employee has informed the
employer what the basis for the grievance was when he or she made the
statement under Step 1 above, and (b) the employer has had a reasonable
opportunity to consider his response to that information. * The employee
must take all reasonable steps to attend the meeting. * After the meeting
the employer must inform the employee of his decision as to the grievance
and notify the employee of the right to appeal against that decision if the
employee is not satisfied with it.

Step 3: appeal
*
If the employee does wish to appeal, he or she must inform the employer.
* If the employee informs the employer of his or her wish to appeal, the
employer must invite the employee to attend a further meeting. * The
employee must take all reasonable steps to attend the meeting. * After the
appeal meeting the employer must inform the employee of his final decision.

 ~~~~~ Modified Grievance Procedure ~~~~

The modified procedure applies only where the employee has ceased to be
employed by the employer and the standard procedure had not already been
completed in relation to that grievance - Reg 6(3)(a). In addition, the
parties must agree in writing to use the modified procedure, otherwise the
standard procedure applies. It is not possible for an employer and employee
to have a blanket agreement (for example, in a contract of employment) that
any grievance unresolved at the termination of employment will be subject to
the modified procedure, since the agreement must relate to a specific
grievance of which the employer is already aware - Reg 6(3)(c).

Step 1: statement of grievance
*
The employee must -
(a) set out in writing - (i) the grievance, and (ii) the basis for it, and
(b) send the statement, or a copy of it, to the employer.
Step 2: response
*
The employer must set out his response in writing and send the statement or
a copy of it to the employee.
General Requirements
The following requirements must be adhered to in all GPs and DDPs set out
above (so far as applicable).
Timetable
*
Each step and action under the procedure must be taken without unreasonable
delay.
Meetings
*
Timing and location of meetings must be reasonable.
* Meetings must be conducted in a manner that enables both employer and
employee to explain their cases. * In the case of appeal meetings which are
not the first meeting, the employer should, so far as is reasonably
practicable, be represented by a more senior manager than attended the first
meeting (unless the most senior manager attended that meeting).
·  to have a more senior manager hold the appeal meeting if reasonably
practicable
·  to inform the employee of the final decision
·  not to allow unreasonable delay at any stage of the process.


An employee who wishes to raise a grievance after employment ends (or
shortly beforehand) must write the initial letter, setting out the grievance
and the basis for it. If the parties wish to deal with the matter purely by
way of an exchange of letters, they must record this agreement in writing.
Otherwise the standard GP applies and the employer must invite the employee
to a meeting to discuss the matter.

Contents of Grievance Letter
----------------------------

There is a potential difference between the written statements of grievance
in Step 1 of the standard GP and in Step 1 of the modified GP. In the
standard GP, the employee need only 'set out the grievance in writing', and
must inform the employer whether in writing or otherwise 'what the basis for
the grievance was' when he wrote the letter. It is unclear whether this
means that the employee must explain the basis of the grievance at the same
time as giving notification of it, or merely explain later what the basis
was at the time the notification took place. In the modified GP, on the
other hand, the situation is clear: the employee must set out in writing not
only 'the grievance' but also 'the basis for it'.

The DTI gives little guidance on the detail required in a grievance, merely
stating that the employee must set out in writing 'the nature of the alleged
grievance'.

Employers should be warned that Discrimination questionnaires do not
constitute. It is clear that questions asked in a discrimination
questionnaire under the EqPA, or the legislation covering discrimination
based on sex, race, disability, religion or belief, or sexual orientation,
do not constitute a written statement of grievance under a GP - Reg 14. An
employer would therefore not be obliged to follow the grievance procedure
merely because a discrimination questionnaire has been received. Nor is the
submission of a questionnaire sufficient to get the employee past the
admissibility criteria in S.32 EA - see 'Admissibility of tribunal claims'
below.

However, there is no reason why an employee could not raise a grievance at
the same time as, or even in the same document as, a discrimination
questionnaire. Reg 14 merely stipulates that the questions do not themselves
constitute a statement of grievance. Thus, employers should be vigilant to
see if the questionnaire contains a statement of grievance in addition to
the questions.



Grievances and Disciplinary Process
-----------------------------------

If a grievance is raised in the course of a disciplinary process the
employer should consider suspending the disciplinary procedure until the
grievance is dealt with. If possible depending on the nature of the
grievance then the employer should consider using an independent manager
when dealing with the issue. Where the action contemplated by the employer
is dismissal the statutory grievance procedure does not apply. Where the
action taken or contemplated is paid suspension or a warning the grievance
procedure and not the dismissal and disciplinary procedure applies to any
grievance. However where the employer takes, or is contemplating action
short of dismissal and assert that the reason for the action is conduct or
capability related, the statutory grievance procedure does not apply unless
the grievance that the action amounts, or would amount, to unlawful
discrimination or that the true reason for the action is not the reason
given by the employer. In those cases the employee must have raised a
written grievance in line with the statutory grievance procedure before
presenting any complaint to a tribunal. However if the written grievance is
raised before any disciplinary appeal meeting the rest of the grievance
procedure does not have to be followed, although the employer may use the
appeal meeting to discuss the grievance.

·  Excluded cases - When the GPs don't Apply
---------------------------------------------

The Regulations set out a number of circumstances in which the statutory
procedures do not apply. In some cases the procedures are disapplied
altogether. In others there is a requirement to follow certain steps, but
thereafter the parties are treated as having complied with the procedure. It
is important to note, however, that these exclusions do not mean that an
employer can, or should, refrain from taking any procedural steps to resolve
the matter under dispute. An employer has a common law duty to 'reasonably
and promptly afford a reasonable opportunity to its employees to obtain
redress of any grievance' - WA Goold (Pearmak) Ltd v McConnell and anor 1995
IRLR 516, EAT. An employer who fails in this duty may be held to have
constructively dismissed the employee concerned. The exclusions under the
Regulations have no effect on this common law duty, which will continue to
apply.

General exclusions from statutory procedures. As with the disciplinary and
dismissal procedures (see Brief 760) a GP will not apply (or, where already
started, will be treated as having been complied with) where a party's
failure to start or carry on the procedure is for one of the following
reasons:
·  the party has reasonable grounds for believing that it would result in a
significant threat to any person (including him or herself) or any
property - Reg 11(3)(a)
·  the party has been subject to harassment and has reasonable grounds to
believe that following the procedure would result in further harassment -
Reg 11(3)(b)
·  it is not practicable to commence the procedure or comply with a
requirement of it within a reasonable period - Reg 11(3)(c).
If the circumstances in either of the first two cases are the result of the
behaviour of one of the parties, that party is treated as having failed to
comply with the procedure.
No GP applicable. Neither of the GPs applies in any of these circumstances:
·  where the employee has ceased to be employed and it is not reasonably
practicable for the employee to write the grievance letter under Step 1 -
Reg 6(4)
·  where the grievance is about an actual or contemplated dismissal (but not
a constructive dismissal - see below) - Reg 6(5)
·  where the grievance is about disciplinary action which the employer has
taken or is contemplating, except as set out below in 'Grievances about
disciplinary action' - Reg 6(6).
Not reasonably practicable to complete GP after employment. Reg 8(1)
provides that, where the standard procedure applies, the parties shall be
treated as having complied with it if all of the following apply:
·  the employee has ceased to be employed
·  the grievance letter has been sent, and
·  since the end of employment it has ceased to be reasonably practicable to
comply with the remaining requirements of the procedure.
This is subject to the somewhat confusing requirements of Reg 8(2), which
says that the employer must nonetheless inform the employee in writing of
its response to the grievance if the following parts of Step 2 of the GP
have been completed:
·  the employer has invited the employee to attend a meeting to discuss the
grievance
·  the employee has informed the employer what the basis for the grievance
was when he or she made the statement under Step 1
·  the employer has had a reasonable opportunity to consider his response to
that information
·  the employee has taken all reasonable steps to attend the meeting.
The practical effect of these provisions is broadly that an employer should
respond in writing to an employee's grievance if the employee has left
employment and it is not reasonably practicable to have a meeting. This is
in fact similar to the modified procedure, and applies in very similar
circumstances - the difference being that instead of the parties agreeing to
deal with the matter by exchange of letters, they do so because it is not
practicable to do it any other way.

The DTI guidance offers no examples of when this might apply, but presumably
it will do so where the employee has relocated to a different area, or has
found alternative employment, either of which could make a meeting not
reasonably practicable.

Collective grievances. The grievance procedure is treated as complied with
where an 'appropriate representative of the employee' - i.e. a trade union
official or other elected employee representative - has written to the
employer setting out the grievance and has specified in writing (whether in
the grievance letter or otherwise) the names of two or more employees on
whose behalf he or she is raising a grievance. Neither the representative
nor the employer is obliged to follow the statutory GP thereafter. Once a
representative has become involved on behalf of a number of employees, the
law assumes that further procedural safeguards are unnecessary.

Collectively agreed procedures with multiple employers. Likewise, where the
employee raises a grievance under a procedure which has been collectively
agreed with more than one employer, the statutory procedures are treated as
having been complied with. Again, there is no requirement that the
collectively agreed procedure is completed, merely that the employee is
entitled to raise the grievance under that procedure and has done so.
It is important to note that in order to trigger this provision, the
procedure must be contained in a collective agreement between two or more
employers or an employers' association and one or more independent trade
unions. A procedure agreed between a trade union and a single employer would
not suffice. Thus it is intended to cover agreements made at the industry
level, not the workplace level.

'Overlapping' Issues
---------------------

There are a number of areas in which it is easy to become confused over
whether the parties should be following a disciplinary and dismissal
procedure, a grievance procedure, both, or neither. Particular attention
needs to be paid where an employee wishes to complain that the employer has
ulterior motives for taking disciplinary action, or alleges that the
disciplinary action is discriminatory.

Dismissal
---------

Where the employee's complaint is that he or she has been dismissed (either
expressly by the employer, or by expiry of a fixed term contract), the
Regulations provide that neither of the GPs will apply - Reg 6(5). In such
circumstances the employee should appeal under the DDP applying to his or
her dismissal - see part 1 of this article in Brief 760.

'Relevant disciplinary action'
------------------------------

Where the employee is aggrieved about the employer taking 'relevant
disciplinary action' (which does not include paid suspension or a warning),
the normal way of complaining is the appeal procedure under the standard DDP
rather than the raising of a separate grievance. However, there are limited
circumstances where the standard GP applies as well.
Discrimination. Where the grievance is that the disciplinary action itself
constitutes (or would constitute) an act of unlawful discrimination by the
employer, the standard GP applies. The parties must follow the standard DDP
(unless an exclusion applies) which includes the obligation on an employee
to exercise the right of appeal. However, the complaint must also be put in
writing under the standard GP - Regs 6(6) and 7(1)(a).
If the written statement of grievance is sent to the employer before the
appeal meeting under the DDP has taken place, there is no need to follow the
rest of the grievance procedure, since the appeal meeting will be a suitable
forum for airing the grievance.

The parties will be treated as having complied with the GP. (Many employers
will prefer to keep the grievance and disciplinary actions separate and hold
separate hearings, but this is optional.) If no DDP is being followed the
grievance letter must be sent before the employee submits any tribunal
claim. In either case the parties are treated as having completed the GP
once the letter has been sent - Reg 7(1) and (2). However, if a DDP is being
followed and the grievance letter is submitted during the appeal meeting or
afterwards, then the GP must still be carried out in full. The matter can
then end up as a rather unwieldy process involving four separate meetings:
the initial disciplinary meeting, an appeal meeting, a grievance meeting and
another appeal if the grievance is not upheld.

The effect of this on claims is apparent from the following example: if an
employee believes that disciplinary action is being taken against her as a
form of retribution for an earlier sex discrimination complaint, then she
may have a complaint of victimisation under the SDA. If a DDP is being
followed, she must appeal under it. However, even though she has appealed,
if she fails to put the matter in writing she will be in breach of Step 1 of
the GP and will not be able to bring a claim - see 'Admissibility of
tribunal claims' below.

Ulterior motives for disciplinary action. The same rules apply where the
employee's grievance is that the employer's grounds for taking relevant
disciplinary action are not related to those on which the employer asserted
it was taking (or contemplating) disciplinary action - Regs 6(6) and
7(1)(a). In such cases the employee has to appeal under any applicable DDP
and also raise the matter as a written grievance as set out above.

Warnings or suspensions. Of course, none of the above rules apply if the
employee wishes to complain about disciplinary action that is not 'relevant
disciplinary action' under the Regulations, i.e. where it consists of an
oral or written warning or a suspension on full pay, since no DDP applies in
such cases. The aggrieved employee must raise a grievance in writing and the
applicable GP must be followed in the normal way.

Constructive dismissal. As we explained in Brief 760, a constructive
dismissal is not a dismissal to which the DDPs apply, since Reg 2(1) defines
'dismissed' as having the meaning given to it in S.95(1)(a) and (b), but not
(c), of the ERA. The DTI guidance states (at paragraph 42) that cases of
alleged constructive dismissal 'are not covered by the dismissal and
disciplinary procedures' and that the employee will need to follow one of
the statutory grievance procedures if he or she wants to complain.

In our view, matters are not as simple as that. GPs do not generally apply
where the grievance is about relevant disciplinary action: such cases are
covered by the standard DDP. Thus, where the employee has resigned and is
claiming constructive dismissal as a result of relevant disciplinary action,
which he or she claims amounts to a fundamental breach of contract, the
question of whether the standard DDP was followed in relation to that
disciplinary action will be relevant to the employee's entitlement to
compensation. Whether a GP also applies will depend on whether the employee
also wishes to complain that the disciplinary action was discriminatory or
was taken for an ulterior motive - see above.

Rearranging Meetings
--------------------

In Brief 760 we described the rules on rearranging meetings in disciplinary
cases where one or other party cannot attend or fails to turn up at the
arranged time and place. The rules for grievances are the same.
If the employee fails to take reasonable steps to attend then the employer
is discharged from any obligation to follow the rest of the procedure. Where
it was not reasonably practicable for either the employee, or his or her
chosen companion, or the employer to attend, this will not count as a breach
if it was for a reason that was not foreseeable at the time the meeting was
arranged - Reg 13(1). The employer must rearrange the meeting once. If it
becomes not reasonably practicable for either party to attend the rearranged
meeting, then there is no obligation under the EA or the Regulations to
rearrange it again - Reg 13(3). The parties are in those circumstances
treated as having complied with the GP and have no further obligation to
follow it - Reg 13(4).

Admissibility of tribunal claims
---------------------------------

Section 32(2) provides that where a GP applies, an employee 'shall not
present a complaint to an employment tribunal' arising from the subject
matter to which the grievance relates, under any of the jurisdictions listed
in Schedule 4 (see Box 2), unless he or she has complied with Step 1 of the
relevant GP - i.e. set the grievance out in writing and sent it to the
employer. Furthermore, S.32(3) states that the employee cannot lodge a claim
within 28 days of complying with Step 1. The intention behind this is to
ensure that employers have time to deal with any grievance before the
employee can pursue a tribunal claim.

There are certain circumstances in which an employee is treated as having
complied with the obligation to write the Step 1 letter - Reg 15(4). These
include when the employee has raised the matter under a grievance procedure
contained in an industry-level collective agreement, and where an employee
representative has raised a collective grievance on behalf of a number of
employees - see 'Collective grievances' and 'Collectively agreed procedures'
above. However, the employee must still wait 28 days after the matter was
raised before applying to the tribunal.

The Government is currently consulting over changes to the employment
tribunal application forms which will indicate to tribunals whether the
employee has complied with the admissibility criteria. If the employee has
not, then the intention is that the tribunal will reject the form, but this
is not necessarily the end of the road for the employee's claim. He or she
will be able to start the process again by writing a grievance letter and
waiting 28 days before making a further application.

6)     Impact of New Law
-------------------------

The new law is of course bad news for those advocates who like the cut and
thrust of advocacy in employment tribunals. It must be asked, however
whether this new law will have the desired impact of cutting down the number
of employment cases reaching the tribunal, after all in common law (see the
'Polkey' case) especially with the larger employers a duty already exists to
run fair internal disciplinary procedures where an employees' complaints and
defences must be heard.

The Government expects that as a result of the new law, results in many more
cases will be settled at an early stage. The employment lawyer's role would
become more of an advisory one if this becomes the case. In my view, the new
law will have minimal effect but may 'knock out' those constructive
dismissal claims where the Applicant has acted in haste without thinking
about mediation. Otherwise, the change is a cosmetic one as sadly too often
employers often like to be seen to employ disciplinary and grievance
procedures but have often made their minds up about a dismissal before their
application.

7) Trouble Shooting
--------------------

What is the Relationship Between Whistleblowing and Raising A Grievance?
------------------------------------------------------------------------

Whistleblowing or raising a grievance? Concern was expressed in Parliament
that the statutory GPs would restrict or cut across the methods by which
employees may make protected disclosures under the whistleblowing provisions
of Ss.43A-43L of the ERA. For example, an employee who wanted to disclose
alleged wrongdoing by a colleague or by his employer might feel obliged to
follow a statutory grievance procedure instead of raising the matter
informally with a manager or bringing the matter to the attention of an
appropriate outside body. Such confusion may arise because S.43G(3) ERA
states that in determining whether a disclosure to a third party was
reasonable (and therefore protected), regard is to be had as to whether the
employee has previously complied with workplace procedures in raising the
matter with the employer.

Paragraph 15 of Schedule 2 of the EA was therefore inserted in an attempt to
clarify the scope of the grievance procedures vis-à-vis the making of
protected disclosures. By virtue of that paragraph, where the employee
wishes to make a protected disclosure, the GPs are only applicable if (a)
the information relates to a matter which the employee could raise as a
grievance; and (b) it is the EMPLOYEE'S INTENTION that the disclosure should
constitute the raising of the matter as a grievance.

It is therefore for the employee to decide whether he or she is making a
protected disclosure or whether he or she also wishes the employer to deal
with the matter 'as a grievance'.
 Only in the latter case must the GP be followed and, even then, only if the
matter could otherwise have been raised as a grievance - i.e. if it concerns
the employer's actions in relation to the employee. In practical terms, the
question is whether the employee intends to make a tribunal claim based on
the grievance if it is not resolved. If he or she wishes to do so the GP
must be followed. If no claim is to be brought, then it can be raised less
formally or through other whistleblowing procedures and still qualify as a
protected disclosure provided the requirements of the ERA are met.

Is Protected Disclosure or Detriment Itself a 'grievance'? If, a protected
disclosure is made and the employee subsequently suffers a detriment or is
dismissed as a result, then this is something in regard to which the
employee could bring a tribunal claim. It is important to distinguish the
making of the protected disclosure itself (which may or may not be a
'grievance' as described above), and the making of a complaint about
detrimental treatment following that disclosure (which is a grievance).

In the case of detriment the employee must raise a written grievance through
one of the GPs prior to making a tribunal claim. In the case of dismissal or
other relevant disciplinary action, the employer should have followed a
statutory DDP and the employee should appeal under that procedure prior to
making a tribunal claim - see 'Overlapping issues' below for further detail.


No contractual effect - yet!

It was the Government's original intention to make the dispute resolution
procedures a part of every employee's contract of employment, and a
provision to this effect is contained in S.30 EA. This would have meant that
a failure to follow the procedures could have constituted a breach of
contract that would have been actionable in a tribunal or the common law
courts. However, the Government has decided not to bring S.30 into force at
this stage, and intends to review the situation in 2006.



8)      Useful Links/ Draft Letters

Useful Guides and Links on the New Law
--------------------------------------------------


1.      ACAS has, published some useful flowcharts on operating the
statutory dismissal and grievance procedures.

2.      http://www.acas.org.uk/publications/pdf/acas_disciplinary_folder.pdf

3.      The new version of the ACAS Code on Disciplinary and Grievance
Procedures has been formally published by The Stationery Office. It has been
updated to incorporate the statutory dismissal and grievance procedures
which, with the ACAS Code, come into force on 1st October 2004.
http://www.acas.org.uk/publications/pdf/CP01.pdf  (Adobe Acrobat required)


4.      DTI Guidance Includes a Simplified '1,2,3' foolproof overview and
draft letters.

5.      http://www.dti.gov.uk/er/resolvingdisputes.htm




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----Announcement-----------

Thanks to Rudi Heinrich of Lloyd Williams Solicitors for facilitating the
opening of Grove House in Swansea, which is available to be used as an
employment tribunal. Bookings should be made through the Cardiff ET.
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On 1 October the Employment Act 2002 (Dispute Resolution) Regulations 2004
come into force. They lay down disciplinary, dismissal and grievance
procedures that provide a framework for resolving workplace disputes
theoretically without recourse to an employment tribunal. The Regulations
aim to set a minimum standard and should compliment your existing
disciplinary and grievance procedures, not replace them.

Disciplinary Procedure - Model Contract

One of the most significant changes and potential banana skins employers
should be aware of is that from 1st October, all employers will be required
to issue a written document setting out their disciplinary rules and the new
minimum procedures. This will only affect the employer if he hasn't already
made a point of distributing this information to staff or if existing
procedures change as a result of the new procedures. This information can
either be communicated in the employee's contract, his or her written
particulars of employment or the letter sent when offering the employee a
job. Alternatively, you could set out the details in a statement of change.

This section sets out the steps you need to take when you are considering
dismissal or disciplinary action. Generally speaking, your aim should be to
resolve the problem whilst keeping the employee on. Even if this is not
possible, you must follow the procedures set out below. The same reasonable
considerations as apply when dealing with grievance hearings should be
applied when dealing with disciplinary procedure. Of course if there are
rare instances of gross misconduct (these should be set out in policy) then
the formal procedure may be ignored.

Formal Investigation

Once the disciplinary process has been initiated, investigations are
conducted by the employee's line manager, as long as that person is not
directly involved in the alleged incident(s). If the manager is involved in
the incident(s) in question then the investigation should be undertaken by
another manager of equivalent
or higher grade. In a disciplinary hearing, the manager carries out a
preliminary investigation and refers his/her findings, including any witness
statements and written evidence to the executive. The investigating officer
will be a different person from the disciplinary officer. Preliminary
interview: All relevant facts are gathered such as personal details; length
of service and absence records. If the misconduct merits it contact outside
agencies such as police. Witness statements and other documents are
collected. Previous informal or formal disciplinary action and current
warnings are considered.

The executive considers whether the matter can be resolved informally i.e:
with further training, counseling. Review dates are set to establish whether
the
conduct, performance or attendance issues have been resolved. Suspension may
be necessary pending the outcome of the investigation, e.g. where the
employee may tamper with evidence or if misconduct is so serious, or of such
a nature, that it would not be in the interests of the employee to remain at
work. The employee is advised of suspension normally in person, and then
confirmed in writing. Suspension should be
kept to a maximum of six weeks. It is usually with pay except where there
are serious
allegations of fraud or theft or where the employee hampers the
investigation. If the
investigation finds the employee innocent pay will automatically be
reinstated.

Formal Interview Preparation:

Give notification in writing to the employee informing them who will be
attending (usually manager and HR manager). Allow reasonable notice in order
for the
employee to prepare their case. Inform the employee that they are entitled
to be accompanied by a work colleague or union official. Provide a copy of
this procedure and send them any witness statements, asking them to inform
you whether they accept the details as fact, therefore, it would be
unnecessary to call those
witnesses. If witness statement is in dispute witnesses should be available
to attend the interview and present their statement.
Ask employee to provide any papers they wish to be considered (2 days prior
to interview), formal interview should happen within six weeks
of the event. A meeting room must be booked for the formal interview as well
as a quiet area for any witnesses.

Minutes should be taken of the interview for use as case summary in the
event of any appeal. Interview: Purpose of the disciplinary interview is to
clarify the allegations and evidence in the presence of the employee and
therefore give the employee and/or their representative the opportunity to
respond to the allegations and
evidence and to explain any mitigating factors then reach a conclusion. The
following procedure occurs: Introduce all those present and the purpose of
the interview; outline the nature of the misconduct or incapability;
introduce the evidence including witnesses to be considered; authorised
manager must be accompanied by at least one other manager; witnesses may be
called by both sides and cross questioning will be
allowed; at the conclusion of the disciplinary interview, the Manager will
adjourn the
proceedings to consider their conclusion and the action (if any) appropriate
to the circumstances.

Disciplinary Actions

In deciding to impose any disciplinary penalty, in accordance with these
procedures, an authorised manager must always: act in good faith, and
reasonably and honestly believe in the guilt of the employee, and have had
regard to all mitigating circumstances, including the employee's service
record. There are four options for formal disciplinary action:

Stage 1:Verbal Warning

Appropriate in cases involving offences other than gross misconduct, where
the nature of the offence is minor and/or isolated and where the employee
has no current oral warning.

Stage 2:Written Warning

Appropriate in cases involving offences other than gross misconduct, where
the nature of the offence is more serious than would warrant an oral
warning, where more than one offence is involved, or where there is a
current oral warning on file.

Stage 3: Final Warning

Appropriate where there is a current written warning on file or when
misconduct is considered to be insufficiently serious to justify dismissal
but sufficiently serious to warrant only one written warning, which in
effect will be both first and final.

Stage 4: Dismissal
Appropriate in cases involving misconduct where there is a current warning
(s) on file and, in cases of gross misconduct, where all the evidence
indicates that any other action short of dismissal would not be appropriate.
An employee may be summarily dismissed (i.e.dismissed without notice or a
payment in lieu of notice) only in the event of gross misconduct.
Responsibility for Disciplinary Action The levels of management normally
responsible for disciplinary action are illustrated below:
Implementing the Action The employee should be advised of the outcome
immediately after the adjournment or as soon as possible thereafter. In any
event, written confirmation of a decision, involving written warnings will
be sent to the employee within seven days of the verbal notification of
the decision.

Appeals Procedure

Employees have the right of appeal against the following disciplinary
action:
Verbal Warning to the next line manager in writing within 14 calendar days
of receipt of the warning.

(Also seen in Law Jobs www.lawjobs.co.uk - Issue 4, September 16th 2004)


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