Some employers have heard of the Gibbons Review, which was conducted by Michael Gibbons back in 2006...
Some employers have heard of the Gibbons Review, which was conducted by Michael Gibbons back in 2006 at the Government's request to try to simplify and improve the employment dispute resolution system.
Gibbons' findings led to a public consultation, the results of which were used to introduce the Employment Bill 2007.
One of the important changes that the Employment Bill proposes is a repeal of the statutory dismissal, disciplinary and grievance procedures that were introduced in 2004. A more informal process is now expected to replace it, with the government looking to arbitration body Acas to produce a code of practice that takes into account the proposed changes.
Code of Practice
Acas has now published its revised Code of Practice on Discipline and Grievance for public consultation, which closes on 25 July 2008. This new Code is expected to form an important element of the tribunal process once the statutory dispute-resolution procedures are repealed.
The draft Code is much shorter than the current code on the statutory procedures. It aims to encourage businesses and individuals to resolve disputes internally, thereby saving time and money. Emphasis is placed upon establishing basic, flexible, principles-based guidance to help resolve disputes at an early stage.
The Code sets out key elements to ensure that disciplinary and grievance procedures are dealt with fairly, as follows:
- issues should be dealt with promptly - meetings and decisions should not be unduly delayed;
- employers should act consistently and ensure that similar cases are treated in the same manner;
- appropriate investigations should be made to establish the facts of the case;
- any grievance or disciplinary meeting should, as far as possible, be conducted by a manager who was not involved in the matter giving rise to the dispute;
- where the employer is raising a problem concerning the employee's performance, the immediate manager would be involved;
- an employee should be informed of the basis of the problem and have an opportunity to put their case in response before any decisions are made;
- an employee has the right to be accompanied at any disciplinary or grievance meeting; and
- an employee should be allowed to appeal against any formal decision made.
An important change is that failure to follow the new Code will not automatically render a dismissal to be 'unfair', which is currently the case for a failure to follow the statutory dismissal procedure.
However, the tribunals will take the new Code into account when determining cases and levels of compensation. Currently, failure to follow the statutory disciplinary, dismissal and grievance procedures can increase or decrease the compensation award by between 10% and 50%. Under the new proposals, tribunals will be able to increase or decrease any awards by up to 25% for failure to comply with the Acas Code.
It seems that the Government has accepted that the formal, detailed and 'one size fits all' approach of the statutory procedures has not worked in practice, and it has therefore taken the decision to repeal such procedures to make way for a new approach to dealing with disputes in the workplace.
The new Code appears informal, straightforward and fairly simple. However, it will be interesting to see how it is used and interpreted in practice, and how the tribunals will use their discretion. The Code will be supplemented by a non-statutory guidance booklet, which is expected to provide more detail on how to deal with disciplinary and grievance situations in practice, together with 'model' procedures.
Employers will need to be familiar with these proposed changes in good time for when they are eventually implemented - proposed to be April 2009. A clear understanding of the Code at an early stage will mean that employers will be prepared for how the Government wishes employment judges to consider issues and formulate compensation in the tribunals, and therefore the Code's importance should not be underestimated. The draft Code can be viewed on the Acas website (www.acas.org.uk).
For now, it should be remembered that the statutory dispute resolution procedures remain fully in force and the current Acas code still applies.
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