Unfair Dismissal Notes

LABOUR: UNFAIR DIMISSAL

• 1. DISPUTE AVOIDANCE

  • The context: avoiding dismissals where possible and getting cases resolved locally

  • 1.1 Grievance and Disciplinary Procedures

    • Statute was designed to reduce tribunal proceedings by encouraging Alternative Dispute Resolution (“ADR”).

      • Employment Act (“EA”) 2002: Introduced new minimum standard procedures to be used in disciplinary and dismissal cases. S.30 provided that the requirement to comply with the statutory procedures could be implied into every contract of employment. The Government decided not to commence s.30, waiting to see how the procedures operated in practice. These disciplinary and grievance procedures came into force in October 2004.

      • The Employment Act 2002 (Dispute Resolution) Regulations 2004 were based on a government (Department for Trade and Industry) consultation paper of 9 July 2003.

    • There were grievance procedures and disciplinary and dismissal procedures which both had a modified and standard procedure.

  • 1.2 Gibbons Review

    • Gibbons Review: A Review of Employment Dispute resolution in GB: (http://www.berr.gov.uk/files/file38516.pdf) Found that the unpopular procedures were not a success.

      • Statutory dispute resolution procedures

        • The statutory dispute resolution procedures introduced in 2004 have brought some benefits. Employers and employees have more clarity about the steps they must follow when formally pursuing a disciplinary or grievance issue and as a result many employers now place more emphasis on training managers to handle such situations effectively. Employers also have an opportunity to consider an employee’s grievance before a tribunal claim is submitted, giving a valuable opportunity for early resolution. Single-claimant employment tribunal claims have fallen following the introduction of the procedures. However, the procedures carry an unnecessarily high administrative burden for both employers and employees and have had unintended negative consequences which outweigh their benefits. Many businesses told the Review that they have caused an increase in the number of disputes.

      • Formalising disputes

        • Rather than encouraging early resolution, the procedures have led to the use of formal processes to deal with problems which could have been resolved informally. This means that problems escalate, taking up more management time. Employees find themselves engaged in unnecessarily formal and stressful processes, which can create an expectation that the dispute will end in a tribunal. The complexity of the procedures and the penalties for failing to follow them mean that both employers and employees have tended to seek external advice earlier.

      • One size does not fit all

        • The use of formal processes in cases where other approaches would be more appropriate affects the climate for resolution, and makes parties defensive and more likely to consider an employment tribunal from the outset. For smaller employers the need to put things in writing is often countercultural and can actually exacerbate a problem rather than help to solve it. The Review heard that the procedures apply to many situations where they do not fit or are excessive. For example, the three-step process is inappropriate in agreed redundancy situations or where fixed-term contracts terminate. It frequently does not fit well where an employee wishes to make a complaint after employment has ended

    • On the same day as the Gibbons review was published, the Government published a consultation document:

      • Resolving disputes in the workplace. A Consultation”: (http://www.berr.gov.uk/files/file38553.pdf) Set out measures for taking the Gibbons Review forward and seeking views on a package of measures to help solve employment disputes successfully in the workplace so that:

        • Productivity is raised through improved workplace relations

        • Access to justice is ensured for employees and employers

        • The cost of resolving disputes is reduced for all parties

        • Disputes are resolved swiftly before they escalate

    • These measures include repealing the statutory dispute resolution procedures; providing better help and guidance to resolve disputes at an earlier stage; and improving how employment tribunals work

  • 1.3 Employment Act 2008 and Dispute resolution

    • The relevant Code of Practice can be found at: http://www.acas.org.uk/CHttpHandler.ashx?id=1047&p=0. It lays down general principles and then more specific rules for discipline and for grievance.

    • See also the non-statutory guidance at http://www.acas.org.uk/CHttpHandler.ashx?id=1043.

      • S.1. Statutory dispute resolution procedures

        • In the Employment Act 2002 (c. 22), sections 29 to 33 and Schedules 2 to 4 (which make provision for statutory dispute resolution procedures) are repealed.

      • S.2. Procedural fairness

        • In the Employment Rights Act 1996 (c. 18), section 98A (procedural fairness) is repealed.

      • S.3. Non-compliance with statutory Codes of Practice

        • (1) The Trade Union and Labour Relations (Consolidation) Act 1992 (c. 52) is amended as specified in subsections (2) and (3).

        • (2) After section 207 there is inserted—

          • “207A Effect of failure to comply with Code: adjustment of awards

            • (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 A2.

            • (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 a relevant Code of Practice applies,

              • (b) the employer has failed to comply with that Code in relation to that matter, and

              • (c) that failure was unreasonable,

                • the employment tribunal may, if it considers it just and equitable in all the circumstances to do so, increase any award it makes to the employee by no more than 25%.

            • (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...

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