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Dispute resolution procedures - overviewSTOP PRESS! statutory dispute resolution procedures repealed on 6 April 2009
The statutory dispute resolution procedures have been repealed, with effect from 6 April 2009. There are, however, transitional provisions, and so the procedures may continue to apply in specific circumstances. For full details, see Dispute resolution procedures - transitional provisions.
Commencement No 1, Transitional Provisions and Savings Order 2008, SI 2008/3232
Where the statutory dispute resolution procedures no longer apply, the Acas Code of Practice on Disciplinary and Grievance Procedures, and the statutory provisions relating to that Code, probably apply instead. For full details, see Acas disciplinary and grievance code - application, Acas disciplinary and grievance code - procedural requirements and Acas disciplinary and grievance code - effect of non-compliance.
Overview
The statutory dispute resolution procedures are central to the bringing or defending of any employment tribunal claim. They comprise:
the statutory dismissal and disciplinary procedures and
the statutory grievance procedures
Statute deals with the dispute resolution procedures in:
the Employment Act 2002
EA 2002, ss 29-34, Sch 2
the Employment Act 2002 (Dispute Resolution) Regulations 2004
Dispute Resolution Regs 2004, SI 2004/752
There are standard and modified versions of both the dismissal and disciplinary procedures and the grievance procedures, with rules as to which applies.
EA 2002, Sch 2, paras 1-10
The first thing to clarify is which procedure applies to which complaint. For full details, see The division between the dismissal and disciplinary procedures and the grievance procedures.
Whenever an employer is effecting or contemplating dismissal, or action short of dismissal on grounds of misconduct, capability or competence, the dismissal and disciplinary procedures generally apply. They apply to express dismissals and expiry of fixed term contracts but not to constructive dismissals or action short of dismissal. There are exceptions where no procedure applies.
The grievance procedures generally apply to any grievances that can form the basis of a claim by an employee to an employment tribunal, including constructive dismissal but not including complaints about dismissal or action short of dismissal.
Application and requirements
Dismissal and disciplinary procedures: the standard procedure has three stages:
first, the employer sets out in writing to the employee why he is contemplating dismissing or taking action short of dismissal, and sets up a meeting to discuss it
next, the meeting is held after the employee has had time to consider the employer's letter. The employer gives his decision arising out of that meeting, and tells the employee about the possibility of appeal
finally, if the employee wants an appeal, the employer sets up an appeal hearing (which can take place before or after dismissal takes effect) and, after it has ended, he must inform the employee of the result
The modified procedure is only used in rare cases of gross misconduct where the employer dismissed straight away and can show that it was reasonable to do so before enquiring into the circumstances. It only has two stages: first, the employer sends a letter to the employee explaining why he dismissed the employee, and offering him a right of appeal; then, if the employee wants an appeal, the employer sets up an appeal hearing and, after it has ended, he must inform the employee of the result.
For full details, see Application and requirements of the dismissal and disciplinary procedures.
Grievance procedures: the standard grievance procedure has three stages:
first, the employee must set out his grievance in writing and send a copy to his employer
next, the employer invites the employee to a meeting, after which he must inform the employee of the decision in relation to the grievance, and tell him of his right to appeal
finally, if the employee wants to appeal, the employer convenes an appeal meeting, after which he must inform the employee of the decision
The modified procedure is only used where the employee has left the employer's employment without completing (or even starting) the standard grievance procedure and both parties agree in writing to use the modified procedure instead. It only has two stages: first, the employee sets out his grievance in writing and sends it to his employer; and then the employer must write back to the employee giving its response to the grievance.
For full details, see Application and requirements of the grievance procedures.
Exceptions
Dismissal and disciplinary procedures: for full details, see Exceptions to the dismissal and disciplinary procedures. Situations where the statutory procedures will not apply include:
where the modified procedure applies but the employee submits his tribunal claim before the employer has complied with Stage 1
where the reason or principal reason for the dismissal is retirement of the employee
where a category of employees is dismissed with an offer of immediate re-engagement on new terms, or there are 20 or more redundancies proposed within a 90-day period, or the business simply unexpectedly ceases to function
where the employee is taking part in unofficial industrial action or other industrial action which is not protected industrial action
where the reason for the (automatically unfair) dismissal is that the employee took protected industrial action
where a party can show that it is not practicable, within a reasonable period, to commence or take the next step in the procedure (except where due to one of the parties' behaviour)
where a party believes reasonably that commencing or taking the next step in the procedure would result in a significant threat to himself or any person or property or (where already subjected to harassment) further harassment
where it would not be possible to comply without disclosing information contrary to the interests of national security
where the reason for dismissal is that continued employment of the employee in his or her job would be unlawful, or where a dismissal procedures agreement under ERA 1995, s 110 applies
Grievance procedures: for full details, see Exceptions to the grievance procedures. Situations where the grievance procedures will not apply include:
where the grievance is only about disciplinary action short of dismissal taken because of the employee's conduct or capability (which is not suspension on full pay or the issuing of an oral or written warning). However, an abridged procedure applies where the employee alleges either that the action was discriminatory, or that the grounds which the employer gave for the action are not the true ones
where the employee has ceased to be employed by the employer, no grievance has yet been submitted to the employer, and the claimant can show that it is no longer reasonably practicable to submit one
where a party can show that it is not practicable, within a reasonable period, to commence or take the next step in the procedure (except where due to one of the parties' behaviour)
where the employee has ceased to be employed by the employer but has already put in a Stage 1 grievance under the standard grievance procedure, the procedure doesn't have to be completed if either party can show that it is no longer 'reasonably practicable' to go through with the next step
where the only complaint is dismissal or contemplated dismissal
where a party believes reasonably that commencing or taking the next step in the procedure would result in a significant threat to himself or any person or property or (where already subjected to harassment) further harassment
where it would not be possible to comply without disclosing information contrary to the interests of national security
where an employee representative or trade union sends an employer a grievance on behalf of at least two named employees, or where a grievance is raised under a collective agreement between two or more employers (or an employers' association) and one or more trade unions
Effect of non-compliance
Dismissal and disciplinary procedures: in unfair dismissal claims under ERA 1996, dismissal will be automatically unfair where, through the fault of the employer, the statutory dismissal and disciplinary procedure applies but is not complied with. Failure by either party to comply with the procedure can affect compensation. Where the employee is at fault, compensation will usually be reduced by between 10% and 50%. Where the employer is at fault, compensation will usually be increased by between 10% and 50%.
See Effect of non-compliance with the dismissal and disciplinary procedures.
The normal time limit will be extended by three months where any statutory or other dismissal and/or disciplinary procedure applies, and the employee had reasonable grounds to believe that a dismissal or disciplinary procedure was being followed when the basic three month time limit expired and submits his claim after that. See Effect of the dismissal and disciplinary procedures on time limits.
Grievance procedures: any tribunal claim submitted where the employee should have but failed to send a grievance to the employer at least 28 days beforehand will be rejected. However, time will be extended by three months where the grievance is sent to the employer within the normal time limit but the claim itself is submitted outside the normal time limit. A grievance may not be submitted more than a month after the original time limit expires but the tribunal retains the discretion to extend time on normal principles. See Effect of the grievance procedures on time limits.
Failure by either party to comply with the procedure can affect compensation. Where the employee is at fault, compensation will usually be reduced by between 10% and 50%. Where the employer is at fault, compensation will usually be increased by between 10% and 50%. See Effect of non-compliance with the grievance procedures.
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