Employment Act 2008 - Discipline
The long awaited changes to the discipline and grievance processes are upon us and many organisations are already looking at what it will mean for them. However, do not be tempted to move into the brave new world without first reading our article on the transition provisions all is not quite as straight forward as you might first think. BERR tell us that the new legislation is aimed at reducing the emphasis on process and changing the focus to fairness and reasonableness. We shall be interested in your views.
Discipline:
The statutory 3-steps have been abolished as of 6th April and one of the tests to be applied by Employment Tribunals will be a comparison of the process used by the organisation with that advocated by the Acas Code of Practice – which sets out a process very similar to the previous statutory 3-steps.
It is perhaps worthwhile reminding ourselves that under the Trade Union and Labour Relations (Consolidation) Act 1992 s199, Acas must produce a Code of Practice on Discipline and Grievance which has to be laid before Parliament and receive it’s assent before it is published, so the Code has its feet in statute and has been approved by Parliament – as close as you can get to law without it actually being law!
If organisations fail to follow the Code, Employment Tribunals may increase any compensatory award by up to 25%. So, not a lot of change there you might say. But, of course, failure to follow the Code will not now mean there has been an automatically unfair dismissal. At the moment, even if you catch someone with their ‘hand in the till’, failure to follow statutory process will mean the dismissal was automatically unfair. In a recent EAT case (Zimmer v Brezan), the dismissal was held to be automatically unfair because Step 1 (the letter) did not say that the employer was “contemplating dismissal”. We will all be relieved to see the end of such rulings.
So, what do you need to do to follow a fair dismissal process? The “Burchell” test has never gone away. That is:
- The employer must believe that the employee was guilty of misconduct
- The employer had reasonable grounds on which to sustain that belief; and
- At the stage at which he formed that belief, he had carried out as much investigation into the matter as was reasonable in the circumstances
If that test is met, the organisation’s response must be within the “band of reasonableness” as defined by Lord Denning in British Leyland v Swift - – “The question is ‘Was it reasonable for the employer to dismiss him? If no reasonable employer would have dismissed him, then the dismissal was unfair. But if a reasonable employer might reasonably have dismissed him, then the dismissal was fair. It must be remembered that in all these cases there is a band of reasonableness within which one employer might reasonably take one view; another quite reasonably take a different view”.
And finally, did the employer follow the Acas Code of Practice? There is nothing that can be done to prevent employees claiming unfair dismissal but there is much that can be done to ensure that any claim can be successfully refuted.
- Show that you have carefully investigated the issue
- Give the individual the opportunity to properly defend themselves
- Apply the right to be accompanied by a colleague or TU representative
- Offer an appeal procedure that is not simply window-dressing
Discipline & Grievance
Wages & Redundancy Claims to Employment Tribunal
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