UK: The New Dismissal, Disciplinary and Grievance Procedures

Last Updated: 14 October 2004

The Employment Act 2002 (Dispute Resolution) Regulations 2004 (the "Regulations") were approved by Parliament in February this year and come into force on 1 October 2004. They set out for the first time statutory dismissal, disciplinary and grievance procedures (the "Procedures") to be followed. The Procedures will apply to dismissals and disciplinary matters which occur after 1 October 2004 and grievances which occur or continue after 1 October 2004.

Presently the Procedures will not be contractual although the position is due to be reviewed by the Government in 2006, at which point the Procedures might well become an implied term of every employee’s contract of employment.

The Procedures set a "minimum" standard only. Most employers will have procedures in place which already go beyond the statutory requirements, at least in the traditional disciplinary areas. However, the Procedures do apply to certain types of dismissal where ordinarily one would not expect to follow the disciplinary procedure.

DISMISSAL AND DISCIPLINARY PROCEDURE

The Regulations introduce two types of Dismissal and Disciplinary Procedure ("DDP") the Standard DDP and the Modified DP.

The Standard DDP consists of three stages. Step One, the employer must set down in writing the nature of the employee’s conduct, capability or other circumstances that may result in dismissal or disciplinary action, and send a copy of this statement to the employee.

Step Two, the employer must invite the employee to a hearing. The employee must take all reasonable steps to attend. After the hearing, the employer must inform the employee about any decision in writing, and offer the employee the right of appeal. The employee has a right to be accompanied to the hearing by a work colleague or trade union representative.

Step Three is the appeal stage. If the employee wishes to appeal, he/she must inform the employer. The employer must invite the employee to attend a further hearing to appeal against the employer’s decision, and the final decision must be communicated to the employee. Where possible, a more senior manager should attend the appeal hearing than the chair of the Step One meeting.

The Standard DDP will apply when the employer is contemplating dismissal (including dismissal on grounds of capability, conduct, redundancy, nonrenewal of a fixed term contract and retirement). It will also apply where the employer is contemplating any disciplinary actions short of dismissal in relation to an employee, wholly or mainly by reason of the employee’s conduct or capability ie demotion or transfer.

The Standard DDP should be used where an employer is not making collective redundancies, (ie, where the collective redundancy consultation obligations do not apply). This means that whenever an employer makes an individual redundant he will have to invite him to a hearing, allow him to be accompanied by a colleague or a trade union representative and he will be entitled to an appeal hearing. In practice this means that the procedure for a fair redundancy will be even more proscribed.

The procedure must also be followed in other, perhaps surprising, situations. For example the Standard DDP must be used where a dismissal consists of the nonrenewal of a fixed term contract. It must also be used where there is a compulsory retirement if the employee could claim unfair dismissal.

MODIFIED DISMISSAL PROCEDURE

It is almost always unfair to dismiss an employee instantly, without first going through some form of procedure or carrying out some form of investigation, even in a case of apparently obvious gross misconduct. However, tribunals have occasionally found such dismissals to be fair. The Regulations will allow this possibility to continue for a small minority of gross misconduct dismissals, but even in these cases the employer will be required to use the Modified DP after dismissing an employee.

The Modified DP is a two step procedure.

Firstly, the employer must set down in writing the nature of the alleged misconduct that has led to the dismissal and the evidence for this decision. The letter should also set out the right to appeal against the decision.

Step Two, if the employee wishes to appeal, he/she must inform the employer. The employer must invite the employee to attend a hearing to appeal against the employer’s decision, and the final decision must be communicated to the employee.

GRIEVANCES

Like the Dismissal and Disciplinary Procedures, there are both Standard and Modified Grievance Procedures.

As Step One of the Standard Procedure, the employee must set down in writing the nature of the alleged grievance and send their written complaint to the employer;

Step Two, the employer must invite the employee to a meeting. The employee must inform the employer what the basis for the grievance is and he must take all reasonable steps to attend the meeting. After the meeting, the employer must inform the employee about its decision in respect of the grievance and offer the right to appeal the decision;

Step Three, if the employee is still unhappy, the employer must convene an appeal meeting. After the meeting, the employer must confirm the appeal decision in writing.

The Modified Grievance Procedure is a simplified version of the Standard Procedure:

Step One, the employee must set down in writing the nature of the alleged grievance and send the written complaint to the employer. Simply sending a discrimination questionnaire is not deemed sufficient;

Step Two, the employer must confirm its decision in writing and send this to the employee.

The Standard Procedure will apply in all cases where the employee is still employed and in most cases where the employee is no longer employed, subject to the content of the grievance being covered in the scope of the statutory grievance procedure.

The Modified Procedure will apply where employment has finished and both parties agree or the employer is unaware of the grievance before the employment has terminated.

OVERLAP WITH DISCIPLINARY ACTION

There is no need for employers to follow a separate statutory Grievance Procedure if the employer is taking conduct or capability action and a grievance is raised in writing during the disciplinary process, prior to the appeal stage.

IMPACT ON EMPLOYMENT TRIBUNAL PROCEEDINGS

An employee cannot bring a claim unless they have raised a written grievance where the statutory Grievance Procedures apply. The employee must then wait for 28 days before being able to lodge a claim with the Employment Tribunal. The Employment Tribunal will grant an extension of time automatically for three months from the date the normal time limit would have originally expired provided that an internal Grievance Procedure is ongoing.

IMPACT OF FAILURE TO COMPLY WITH PROCEDURES

Automatic Unfair Dismissal

A dismissal will be automatically unfair if the Standard DDP or Modified DP are not completed for reasons "wholly or mainly attributable" to the employer. This is of course subject to the employee having been employed for the requisite 12 months qualifying period.

Financial Sanctions

Financial sanctions may be placed on either the employer or the employee for failure to comply with both the Dismissal and Disciplinary and Grievance Procedures. The test is whether a non compliance is "wholly or mainly attributable" to failure by either party.

The Employment Tribunals are required to increase or decrease compensation awarded to the employee by between 10% and 50% where the statutory Procedures have not been completed and that failure is attributable to one of the parties. The Tribunal will look at what is "just and equitable" when deciding by what percentage to vary the award.

The cap on awards for unfair dismissal will remain in place (currently set at £55,000).

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.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

 
In association with
Related Topics
 
Related Articles
 
Related Video
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Mondaq Free Registration
Gain access to Mondaq global archive of over 375,000 articles covering 200 countries with a personalised News Alert and automatic login on this device.
Mondaq News Alert (some suggested topics and region)
Select Topics
Registration (please scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions