With the Department of Trade & Industry launching a period of consultation as to whether the Statutory Disciplinary and Grievance Procedures should be abolished, employers are faced with the potential upheaval of more significant changes in this important area of everyday HR practice. In the meantime, we must all soldier on with the current legislation as it stands today, so we thought we would update you with some useful recent cases.
No free standing claims
The EAT in Scott-Davies v Redgate Medical Services confirmed that an employee cannot bring a free standing claim in relation to these procedures. In this case the employee had less than one year’s service and was attempting to bring a claim against his employer for breaching the disciplinary procedures. Employers should be aware that employees may, however, seek to argue that the breach of the procedures is evidence of less favourable treatment and may therefore support a discrimination claim (where the employee does not require any qualifying service to bring such a claim in the Tribunal).
Check your disciplinary procedures fully incorporate the statutory disciplinary procedures
The case of Masterfoods (a division of Mars UK Ltd) v Wilson highlighted the importance of checking your company’s disciplinary procedures fully incorporate the statutory disciplinary procedures. This is to ensure your procedures don’t deny any employees of their rights under the statutory provisions. In this case, Masterfoods denied an internal appeal on the basis that Wilson had failed to provide written grounds for the appeal (required by the company’s procedure). However, the statutory procedures only require Wilson to inform Masterfoods of his intention to appeal. Wilson’s dismissal was therefore deemed automatically unfair.
This case also reminds employers to ensure that, where possible, the same manager should not be involved in the different stages of the procedure, particularly where the company has HR and other management personnel at its disposal.
Can an appeal "cure" any previous procedural defects?
Following the principles outlined by the Court of Appeal in Taylor v OCS Group Ltd, employers should note that an appeal can only cure a defect that does not amount to a breach of the statutory minimum procedures. In practical terms, all is not lost for employers who find themselves having breached the minimum procedures as there may be scope (dependant on the circumstances) to argue that the breach made no difference to the outcome in any event.
Does an employee need to lodge a grievance where the employee claims their dismissal was discriminatory?
The EAT in Lawrence v HM Prison Service has clearly outlined that the grievance procedure does not apply where an employee claims discrimination arising from a dismissal. This means there is no obligation to lodge a step 1 grievance letter and the employee is not entitled to a three month extension of time to lodge the claim at the Tribunal.
Tribunal Claims made where the grievance procedure has not been followed
London Borough of Hounslow v Miller clarified for the Tribunals that they are not allowed to "stay" applications in cases where the grievance letter has not been sent, or the claim is made before the 28 days has elapsed. The tribunals should simply reject the claim until these elements have been fulfilled.
To Be Abolished?
In March 2007, less than three years after its introduction, the DTI launched a consultation with a view to abolishing the statutory disciplinary and grievance procedures. The consultation followed a report by Michael Gibbons on the Employment Act (Dispute Resolution) Regulations 2004, which stated, "I was struck by the overwhelming consensus that the intentions of the Regulations were sound and there was a genuine attempt to keep them simple. However, they have had unintended consequences which have outweighed their benefits". The key recommendations of his report (which are the main focus of the consultation) are:
- Repeal the statutory and grievance procedures
- Simplify the Tribunal application forms
- Abolish the fixed ACAS conciliation period
- Provide free mediation services for employment disputes
- Strengthen the Tribunal’s powers to award costs, including taking into account the parties’ efforts in resolving the dispute internally or settling the case.
We await the outcome of the consultation with interest - so watch this space!
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
