In order to establish what it is hoped will be a more flexible system for dealing with workplace disputes, as of 6 April 2009 the Employment Act 2008 repeals the Statutory Dispute Resolution Procedures in their entirety. In their place will be a revised voluntary Advisory Conciliation and Arbitration Service (ACAS) Code of Practice, which sets out the basic principles for ensuring fairness and transparency when handling disciplinary problems and grievances in the workplace. The new arrangements will apply to any case where the trigger event takes place on or after 6 April 2009. It should be noted that the Code of Practice does not apply to dismissals due to redundancy or the non-renewal of fixed term contracts on their expiry.
It will no longer be automatically unfair dismissal if an employer fails to comply with the Code of Practice. However, an employment tribunal will have the discretion to increase or reduce an award by up to 25 per cent where either side unreasonably fails to comply with the new Code.
The Code of Practice advises that attempts should always be made to resolve disciplinary and grievance issues in the workplace. Where this is not possible, the use of an independent third party should be considered to help resolve the problem. This need not be someone from outside the organisation but could be an internal mediator, as long as they are not involved in the disciplinary or grievance issue. However, in some cases, an external mediator might be appropriate.
The 10-page ACAS Code of Practice can be found at http://www.acas.org.uk/index.aspx?articleid=2174.
ACAS guidance on mediation can be found at http://www.acas.org.uk/index.aspx?articleid=1680.
The Code of Practice is supported by non-statutory guidance, which is more detailed and provides good practice advice on dealing with discipline issues and grievances in the workplace. The 74-page guidance contains sample disciplinary and grievance procedures, as well as sample letters, and can be found at http://www.acas.org.uk/CHttpHandler.ashx?id=1043.
Employers are reminded that there are transitional arrangements in place as regards disciplinary and grievance cases where the trigger event occurred before 6 April or was ongoing at that date. Further information on the transitional provisions can be found on the website of the Department for Business, Enterprise and Regulatory Reform at http://www.berr.gov.uk/whatwedo/employment/Resolving_disputes/disputes_after_6_april_2009/index.html.
Employers are advised to involve employees in the development of revised disciplinary and grievance procedures and to make sure that all staff understand what the new rules are and have access to them.
For further information on any Health and Safety issues, please contact Dean Parnell (d.parnell@sydneymitchell.co.uk) at Sydney Mitchell Solicitors on 0121 698 2200.
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