Employment Act 2008 - Grievance
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.
Grievance:
The news is perhaps less good as regards to grievances. At least the 3-Step process ensured that employees had to try and deal with problems internally before any Tribunal would accept their claim, even if it did mean that formal processes were invoked when informal might have been the better route. Employers had 28 days grace before an Employment Tribunal claims could be lodged. Removal of the statutory process returns us to a position whereby an employee can go straight to Tribunal application, by-passing HR along the way.
The first you may know of a harassment claim for example may be when the ET1 hits your desk. Not only is this potentially expensive, it also means that you are not alerted to problems at an early stage. You may feel it worthwhile revisiting your grievance policy and/or bullying/harassment policies and considering what you can do to “encourage” employees to use it rather than going direct to an Employment Tribunal. Things to think about are:
- Confidentiality – if someone is subjected to homophobic behaviour for example, can you guarantee they will not be further ‘outed’ by an investigation?
- If the problem rests with a senior member of staff, will they be protected by the investigating officer simply because they are senior? It is often the case that the Director of Finance comes out better than the cleaner even if he did pinch her bottom!
- Are there perceptions of victimisation of those who have opened a grievance? Perception is, of course, reality.
- Writing an offer of mediation into the policy may provide an alternative route to defusing the situation.
Tribunals will be able to reduce any award by up to 25% if applicants did not use internal processes before instigating a claim. However, it remains to be seen how often that happens as it will be difficult for respondents to refute claims that following an internal grievance procedure would have led to victimisation or similar.
Acas
All Employment Tribunal claims are initially directed to Acas whose remit it is to facilitate ‘out of court’ settlements. The Employment Act 2008 sweeps away the current fixed period conciliation process, and conciliation will now be open from Day 1 until you reach the steps of the Employment Tribunal building, and indeed beyond. As a result Acas have announced extended hours including Saturday mornings and they will now be able to conciliate before a tribunal claim has been made – an “early conciliation service”.
If you have a claim against you and intend to “settle” we encourage you to use the Acas service which is free of charge unlike compromise agreements which can be quite expensive.
And finally....
Cullen Scholefield can train your line managers to ensure they get it right. It cannot prevent an Employment Tribunal claim but it may ensure you can successfully defend your case.
The maximum compensation award at Employment Tribunal is now £66,200 added to which must be a statutory weeks pay (£350) for each year of employment bringing the maximum penalty for an unfair dismissal to £76,700, excluding legal fees.
Ensuring you get it right first time can save you time, angst and money.
Mediation - Cullen Scholefield now offers the services of a mediator.
Wages & Redundancy Claims to Employment Tribunal
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