Following Michael Gibbons review the Government introduced an Employment Bill at the end of 2007. The key element of the Bill is to repeal the statutory requirement relating to workplace dispute resolution introduced in 2004. This will result in less legally binding rules on how disciplinary matters are handled by the employer. Also repealed is Section 98A of the ERA by which a dismissal would be automatically unfair should the employer not complete the "statutory" procedure.
In place of the statutory legal requirements, ACAS have provided a statutory Code of Practice in handling disciplines. This Code of Practice should be used in the design and implementation of Discipline Procedures. Failure to follow the Code does not in itself make a person or organisation liable to proceedings. However Employment Tribunals will take the Code into account when considering relevant cases. Tribunals will also be able to adjust any awards made in relevant cases by up to 25 per cent for unreasonable failure to comply with the Code Practice. APS Policy, Procedures and supporting letters are based on ACAS Code of Practice, wherever applicable.
Current to 5 April 2009 - (Employers need to adhere to this legislation at the current time)
It is a legal requirement under the Employment Rights Act 1996 that all employers (including those employing less than 20 employees) provide details of all aspects of the dismissal and disciplinary procedure. Disciplinary procedures may be used for problems with employees’ conduct or performance. Normally the disciplinary procedure should be set out in the employee’s contract of employment or written statement of particulars or held in a readily accessible place. As a minimum the disciplinary procedure should:
Stage 1
- Detail the complaint to the employee, with evidence, stating the severity of the complaint as necessary
- Invite the employee to a meeting to discuss the matter
- Detail how meetings will be held, whether they are considered informal or formal and who is entitled to accompany the employee (either a colleague or union representative)
Stage 2
- Hold a meeting to discuss the complaint with the employee
- Provide written outcome of any meetings, particularly formal disciplinary meetings, setting out any action required by the employee
- Give employee the Right of Appeal to employer’s decision
Stage 3
- In the event of an Appeal the employer must invite the employee to a further meeting
- Inform the employee of the final decision
- Employers can be exposed to an automatically unfair dismissal claim and up to a 50% increase in compensation if the statutory 3 stage procedure is not followed
Policy and Procedure
- Set out minimum statutory requirements and essentially makes provision for the employer to have flexibility in managing the process, with clearly defined and well explained steps throughout the process
- Set out the process for dealing with disputes informally through mediation and conciliation
- Where formal action is required, the procedure takes the employer and employee through every stage of disciplinary action through to termination of employment
- Helps improve employee's performance and/or conduct and, with the aid of the supporting letters, hasgreatly assistedmany employers and managers stay out of tribunal!
Letters
- Cover every stage from suspension through to termination of employment, with the right of appeal and final decision. The employer can easily pick out a letter at any stage of the process with clear guidelines for completion
- Well written disciplinary procedures are a vital tool to help employers resolve problems internally and avoid employment tribunal claims!
