Until April 2009, all employment disputes, whether a ‘disciplinary’ or ‘grievance’ had to follow a legal 3-step process with prescribed time limits and actions. Any disciplinary or grievance claim that did not follow the set process would either result in an automatic unfair dismissal or suffer a significant reduction in compensation by the Employment Tribunal.
This was heavily criticised for being too formulaic, resulting in both employers and employees becoming more concerned with following the process to the letter, rather than seeking to resolve their disputes to the benefit of both sides.
The statutory procedure was repealed in April 2009 and we now have the ‘ACAS Code of Practice’. ACAS or ‘Advisory, Conciliation and Arbitration Service’ is an independent body that aims to improve organisations and working life through better employment relations.
The ACAS Code of Practice is much more flexible than the previous process in that if an employer or employee ‘unreasonably’ fails to comply with the Code, then this does not mean their claim or action is automatically dismissed or automatically found to be unfair, but the Tribunal does have the power to increase or decrease the employee’s compensation by up to 25%.
There is still a grey area in that the Code does not specify what is deemed to be ‘unreasonable’. However the Code is widely accepted to be a vast improvement on the previous legislation, and in this article we shall give an explanation of its key principles and how these might apply to you in the workplace.
Probably the single most important fact to be aware of is that an employment claim must be presented to the employment tribunal within three months less one day of the date when the act occurs that is being complained about, or when the employee was dismissed. If you feel that a tribunal is the only means of settling your dispute then you must act within this time limit.
However, the general spirit of the Code is that employers and employees should always seek to resolve disciplinary and grievance disputes in the workplace – firstly through internal procedures and, where this is not possible, through the use of an independent third party such as a professional mediator. The employment tribunal should always be considered a measure of last resort.
According to the Code, employers should
• investigate disciplinary matters promptly
• treat investigatory (‘fact finding’) and disciplinary meetings as separate processes with different managers for each
• inform employees of the basis of the problem and give them an opportunity to put their case in response before any decisions are made.
• confirm the outcome of disciplinary processes without unreasonable delay
• hold a meeting regarding an appeal against disciplinary action without unreasonable delay
• inform an employee of the outcome of their appeal as soon as possible.
The code also sets out additional duties for an employer in relation to grievances, including
• to investigate grievances promptly
• where practicable to appoint a different manager to hear a grievance appeal
• to confirm the outcome of a grievance meeting as soon as possible
• to hold an appeal meeting without unreasonable delay.
The code imposes fewer obligations upon employees, but these include
• raising a grievance or appeal against dismissal without unreasonable delay
• attending disciplinary and grievance hearings where possible
• not unreasonably delaying the conduct of grievance and disciplinary meetings.
For both disciplinary and grievance meetings, the employee has the right to be accompanied by either a colleague or a trade union representative. This can often be of great moral support if the employee feels intimidated by the prospect of a confrontational situation with their employer.
However if you are in such a situation then whilst we recommend that this right should be exercised wherever practicable, we also strongly recommend that you do not go into the meeting with the preconception that it will be confrontational. Remember it is very much in your employer’s interests to resolve matters before they reach a tribunal, so be calm and confident throughout the meeting, knowing that you have the right to appeal, and that this appeal will usually be conducted by a different manager.
Then if you believe that both the first meeting and the appeal were not conducted fairly, then you have the option of taking it to tribunal – but at all times remember the three month time limit for making a tribunal claim, irrespective of how long the appeal takes. It is not 3 months from the date of when the appeal process ends.
Taking legal proceedings i.e. commencing a tribunal claim should not be considered lightly as this often means significant if not irreparable damage to your relationship with your employer. However if you feel that all other options have been exhausted and this is your only chance of obtaining justice then Hamilton Brady’s solicitors are experienced specialists in all areas of employment law – and you have access at all times to our customer service advisors.
Wherever possible they will undertake your case on a ‘no win no fee’ basis. However this cannot be guaranteed as it depends on the particular circumstances of each case, and in certain situations, you may be asked to pay an upfront fee. Contact us today for a free no obligation evaluation of your case.
By HAMILTON BRADY LTD,
Tel: 0844 873 6081
Address: Springfield House
Water Lane, Wilmslow, Cheshire, SK9 5BG
Disclaimer: The above article is meant to be relied upon as an informative article and in no way constitutes legal advice. Information is offered for general information purposes only, based on the current law when the information was first displayed on this website.
You should always seek advice from an appropriately qualified solicitor on any specific legal enquiry. For legal advice regarding your case, please contact Hamilton Brady for a Consultation with a Solicitor on 0844 873 608.