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Pete, Mark and Pauline work for Walford Engineering Ltd, a firm manufacturing rides for fairs.
During the last two years, there have been periods of short-time working. Two years ago, there was an industrial dispute and all the workforce were put onto a four day week for the period of the dispute, which lasted from February to March. Six months later, another dispute occurred, which lasted for five months, from September to January, and, again, the workforce were put onto a four day week. In both cases, the two unions at the factory, the CMU and the SWU, agreed to the cuts. In September last year, the CMU agreed that, in the event of future disputes, it would accept a three day working week if it became ‘economically necessary’. This agreement was stated to be binding in honour only.
Last month, there was another dispute and the company put the workforce on a three day working week for a month. Both Pete, a member of the CMU, and Mark, a member of the SWU, are claiming four days’ pay.
Pauline works as a typist in the typing pool at the factory. She started work four weeks ago. Last week, she fell ill and will be off work for a total of three weeks. Her statutory statement says that she is entitled to sick pay after two weeks of illness but her contract, which was sent to her home during her illness, states that sick pay will be paid only after three weeks of illness. In addition, when she applied for her job, the advertisement said that the position was that of ‘personal assistant/typist’, however, the title of the job on her contract is ‘typist’. She feels that she would not have taken the job if she had known that it would only involve typing.
Advise Pete and Mark as to the likely success of their claims and Pauline in relation to her sick pay and the nature of her job.
Answer Plan
This question raises the issue of collective agreements and their enforceability at the individual level. It raises issues as to whether there is an implied term, irrespective of the collective bargain. To some extent, in relation to the first two parties, there needs to be some discussion in relation to implied duties. In addition, it addresses the problem of a conflict between the written terms of the contract and the statutory statement, and whether terms implied from sources outside the contract can modify the express terms within it.
The issues to be considered are:
Answer
Pete and Mark have in the past accepted a four day working week when there has been an industrial dispute. This is evidenced by the fact that they are both only suing for four days’ pay in relation to the last four week lay-off. Generally, at common law, there is an implied duty to pay wages but not to provide work (Collier v Sunday Referee Publishing Co Ltd (1940)). This, however, is only a general proposition.
In some cases, there is a duty to provide work where, for example, the employee needs to develop his skill or where the work must be done to earn the wage, as in the case of piece workers (Devonald v Rosser and Sons (1906)). The implied duty to pay may be ousted by an express term in the contract (Hulme v Ferranti Ltd (1918)) or the practice of the industry may imply a term that there is no pay during lay-off and this will oust the general duty (Puttick v John Wright and Sons (Blackwall) Ltd (1972)).
The first question to ask in relation to Pete and Mark is whether there is a duty to pay during lay-off. In the past, both have accepted a four day week when there has been an industrial dispute. Whereas the general duty is to pay, this does not apply when the failure to pay wages is outside the control of the employer. In Browning v Crumlin Valley Collieries (1926), Greer J held that the duty did not apply when the employer had to close down the colliery when a land fault necessitated urgent repairs. In the case of Walford Engineering, it appears that the industrial disputes render it impossible to provide work for five days. If such impossibility is proved and further work cannot be provided for the last working day of the week, then, under the authority of Browning, it would appear that there is no breach of contract on the part of the employer and Pete and Mark will be unsuccessful in their claims.
If, on the other hand, it is deemed that it is not impossible to provide five days’ work, the question to be asked is whether there is a term in their contracts that allows for layoffs without pay. In the past, both men have accepted a four day week during disputes. In addition, both of the unions also accepted the reduction in pay, although it does not appear that this was done by collective agreement, merely an acquiescence. Could it be argued that the past conduct of Pete and Mark has now implied a term into their individual contracts that there will be a shorter working week when there is a dispute? It appears that until the recent lay-off, there were only two occasions in the past when there was a four day working week, although it lasted in toto for five months. In implying terms into the employment, the courts do not tend to rely on the old contractual tests of business efficacy or obvious consensus, but rather what is a reasonable term in all the circumstances. In Courtaulds Northern Spinning Ltd v Sibson (1988), a mobility clause was implied into the employee’s contract because he had been mobile between two sites during the relationship. Slade J said, ‘The court merely has to be satisfied that the implied term is one which the parties would probably have agreed if they were being reasonable’. Thus, it may be argued that because of the acceptance of the four day week without protest in the past, this has now become an implied term in both the parties’ contracts. A further argument that the employer may put forward is that lay-off without pay has now become a custom. It is submitted, however, that to show that a practice has become a custom and implied into the contract, it must be certain, general and reasonable. Smith and Thomas (Smith and Wood’s Employment Law, 9th edn. (2008)) state that this can occur in one of three ways. Either the custom is so notorious that there is judicial notice of it, or it is so well established that the employee must have accepted employment subject to it (Sagar v Ridehalgh and Sons Ltd (1931)), or the practice grew up while the employee was employed and he impliedly accepted it, although du Parcq LJ said, in Marshall v English Electric Co Ltd (1945), that mere continuance at work may not be enough to signify acceptance as it may be caused by other factors, such as a fear of dismissal. This is reemphasised in Samways v Swan Hunter Shipbuilders Ltd (1975).
Given that the practice in the problem has only been happening over the past two years, it would appear that the only way it could have become a custom and thereby implied into Pete and Mark’s contracts, is the fact that it arose during their employment and they have accepted the deductions. Given Samways, however, it would be possible to argue that their acceptance of the shorter week was due to a fear of losing their jobs and not because they accepted that they were contractually bound to do so.
Even if there is a term in both of their contracts, previous deductions have been in relation to one day’s pay and the disputed deduction is in relation to two days’ pay. Pete’s union, the CMU, has agreed to a three day week where there is a dispute if this is ‘economically necessary’. The agreement is stated to be ‘binding in honour only’ but this will have no effect on the enforceability of the term if it has become a term of the individual’s contract.
Where there is no express incorporation of a collective agreement at the individual level, it is possible that the agreement may be impliedly incorporated. From Joel v Cammell Laird (1969), it appears that for implied incorporation into a union member’s contract, there must be knowledge of the agreement, conduct on the part of the employee that shows he accepts the agreement, and some indication of incorporation into his contract. Duke v Reliance Systems Ltd (1982) adds that the employee must have knowledge of the existence of the term, if not its content, and, in Jones v Associated Tunnelling Co Ltd (1981), the EAT held that the fact that an employee continues to work does not imply assent to a change in terms, particularly if the change does not have immediate effect. In relation to Pete, therefore, if he is aware of the agreement made by his union and of the existence of a term relating to unpaid lay-off, the term will be part of his contract. Unless he can show that the three day week was not economically necessary, he will be unable to sue for the loss of four days’ pay. Mark, on the other hand, is not a member of the CMU. Even if he has varied his contract so that theemployer is entitled to put him onto a four day week, by Miller v Hamworthy Engineering Ltd (1986), he is not bound by the negotiations of another union. As such, Walford Engineering is in breach of contract by deducting two days’ pay, and his claim will be successful. Henry v London General Transport Services Ltd (2001) can be distinguished in Mark’s case as he is a member of a union that has, in the past, negotiated with the employer and that, in the case of the three day week, has not done so. On these facts, it is unlikely that a tribunal will find that there is a custom that the CMU negotiates on behalf of all of the employees, including those who belong to a different union.
In Pauline’s case, there is a discrepancy between her statutory statement and her contract in relation to sick pay. Although all employees should receive a statutory statement of terms and conditions within eight weeks of starting their employment, the statement is not contractual but merely evidence of what the terms of the contract are.
Browne-Wilkinson J, in System Floors (UK) Ltd v Daniel (1981), said of the statement, ‘It provides very strong prima facie evidence of what were the terms of the contract between the parties, but does not constitute a written contract between the parties’. Such an interpretation, however, does not help Pauline. While in some cases the courts have accepted that the statement does comprise the contractual terms, this is usually where there is no further written document and where the employee has signed the statement itself and not merely a receipt (Gascol Conversions Ltd v Mercer (1974)). We have no evidence of whether Pauline signed the statement itself. If she did, it may be possible to argue that by sending different terms in a later document, the employer is attempting a unilateral variation and there is no conduct on the part of Pauline that shows acceptance of the change. If, on the other hand, she has signed nothing or merely a receipt acknowledging that she has received the statement, then, relying on the judgment of Browne-Wilkinson J above, her contractual terms will prevail and she will not be entitled to sick pay during her illness.
Pauline is employed as a typist according to her contract, but the advertisement for the job described the post as personal assistant/typist. The normal contractual rule is that an express term cannot be overridden by an implied term (Deeley v British Rail Engineering Ltd (1980)). In Johnstone v Bloomsbury Area Health Authority (1991), Stuart-Smith LJ stated that an express term relating to hours was subject to the implied duty to ensure the employee’s safety, although Browne-Wilkinson VC, in the same case, stated that the exercise by the employer of his right to ask for extra hours over and above the obligatory ones, was subject to the implied duty in relation to safety, so leaving the contractual principle intact. Whether Johnstone is seen as an attack on the normal contractual principle or not, it is unlikely in Pauline’s case that a court would allow the written express term to be overridden by a term implied from an advertisement (Deeley) and, as such, Pauline is employed as a typist only.
Good essays are the gateway to top marks. New to this edition, The Good, The Fair, and The Ugly shows you the style of essay which works well in exams, as well as the simple errors that can cost you essential marks. Written by our Q&A authors, each of these interactive essay-based tutorials highlights key themes and common errors and illustrates essays of specific standards:
Whilst marking criteria will vary, as a general guide, the Good answer will be based on a general mark of a first or upper second class; the Fair answer will be based on a lower second or third class and the Ugly answer would result in a fail.
The procedures contained in the Employment Act 2002 (Dispute Resolution) Regulations 2004 were introduced to reduce the number of cases coming before tribunals and encourage work place resolution of disputes. The result, however, was the opposite and a lack of confidence in the procedures led to their repeal.
Critically evaluate the reasons why the statutory procedures were so unsuccessful.
The Employment Act 2002 introduced for the first time the concept of statutory dispute resolution procedures, by introducing procedures for dealing with both disciplinary matters and grievances. The aim of the new procedures was to reduce the amount of claims heard by tribunals and encourage employers to use basic procedures before taking disciplinary action. The latter aim was as a result of research commissioned by the (then) DTI, which showed high levels of tribunal cases in which little or no use had been made of internal procedures to try and resolve a dispute before resorting to a tribunal. However, the flavour of the later consultation paper, ‘Routes to Resolution’ (DTI 2001), placed great emphasis on cost, stating that the cost of running the Employment Tribunal Service was £51.7 million to date. (1) This is a good point to make and sets the scene for the rest of the essay. Using figures in this way reinforces arguments made later on. The 2002 Act laid out the basic procedures with the Employment Act 2002 (Dispute Resolution) Regulations 2004, providing more detail. The procedures came into force in October 2004 and, as Pitt (2008) states, ‘quickly became universally unpopular’. At the same time, ACAS issued a revised Code of Practice on Disciplinary and Grievance Procedures (2004). While the aim of the procedures was to reduce claims reaching an employment tribunal, figures issued by the Tribunal Service in September 2007 showed that tribunal claims 2006/7 were up 15 per cent when compared to 2005/6 figures. (2) The introduction clearly establishes the premise that will be argued throughout the essay.
The disciplinary and dismissal procedures consisted of a standard and modified procedure. They applied to all cases except certain dismissals during a strike or other industrial action, where the employer’s business suddenly ceased due to an unforeseen event, where an employee could not continue to work without breaking the law and where the dismissal was one of collective redundancies involving 20 or more employees.
The standard procedure in Schedule 2 Part 1 of the 2002 Act, consisted of: notifying the employee in writing of the alleged misconduct, characteristics or other circumstances which led the employer to contemplate dismissal or disciplinary action and inviting the employee to a meeting; holding a meeting before deciding on any action (except in the case of a disciplinary suspension) and then informing the employee of the outcome and of the right to appeal; and holding an appeal if required and informing the employee of the final decision. The employee had to take all reasonable steps to attend the meetings. Each step had to be taken without unreasonable delay, the timing and location of the meetings had to be reasonable, both the employer and employee had to have an opportunity to state their case and at the appeal, the employer should be represented, if possible, by a more senior manager than the first hearing. (3) It is necessary to briefly describe the procedures in order to critique them. However, it is not necessary to go into a lot of detail, just enough to be able to support later arguments.
Early cases discussed the amount of information that should be given to the employee. In Alexander v Brigden Enterprises (2006) the dismissals were for redundancy. The EAT held that the employer had to tell the employee why the redundancies were happening and why he had been selected. In YMCA Training v Stewart (2006) the EAT held that although the employer did not have to detail all of the evidence against an employee, the employee should have enough information to be able to answer the case against him.
The modified procedure applied in cases of gross misconduct and consisted of notifying the employee in writing of the alleged misconduct that led to dismissal and informing him of the right to appeal, and holding an appeal and informing the employee of the final outcome. The Explanatory Notes to the Act made it clear that the modified procedure should only be used in exceptional circumstances and stated that not all gross misconduct should be dealt with by the modified procedure.
Originally the Government intended to make the procedures a contractual term in all employees’ contracts. A consequence of this would have made any breach of procedures a breach of contract claim, in addition to the other rights provided, and it may be that this influenced the Government to make the procedures non contractual. Scott-Davis v Redgate Medical Services (2007) made it clear that there was no free standing right to sue for a breach of procedures if the employee did not have the continuity to claim unfair dismissal, except in the case of an automatic unfair dismissal where no continuity is needed (RKS Services v Palen (2007)).
The procedures were regarded as a minimum. Breach of them by the employer was an automatic unfair dismissal and compensation could be increased by between 10 per cent and 50 per cent. Compensation could also be reduced if the failure to comply with the procedures was the fault of the employee. Given that they were a minimum, in some cases larger employers may have had procedures that had additional steps, such as an investigative hearing or two appeals. Section 98A of the Employment Rights Act 1996 provided that where an employer had complied with the statutory procedures but failed to comply with his procedures that were over and above the statutory ones, that failure would not render the dismissal unfair if the employer could show that the breach of his own procedures made no difference to the final outcome. This was a statutory overruling of the House of Lords decision in Polkey v A E Dayton Services Ltd (1987). In Polkey the House of Lords overturned the famous decision of British Labour Pump Co Ltd v Bryne (1979), which introduced the ‘no difference’ rule, which the House of Lords stated was a misinterpretation of the statute, requiring a court to look at the reasonableness of the employer’s behaviour and not the unfairness to the employee. (4) While Polkey is a famous case, it is important to state the House of Lords reasoning behind the decision to provide support for the arguments in the answer. The resurrection of the no difference rule caused some disquiet from both academics (Deakin and Morris (2005)) and the judiciary, particularly from Prophet J, an ex President of employment tribunals.
It was clear from  decisions under the procedures that the tenets of the previous law were still relevant. In Premier Foods plc v Garner (2007) the claimant was one of three who received a final warning after disciplinary proceedings. All three appealed and at the appeal two employees claimed that they were covering for Garner. Garner was suspended and at a hearing two days later was dismissed. The EAT held that the dismissal was unfair as the employer had not observed the statutory procedures. The employer should have started the procedures again when new evidence came forward and allowed Garner enough time to consider the case against her. In Bowen v Millbank Estate Management Organisation Ltd (2007) Bowen was invited to a disciplinary hearing and only at that hearing did she know the details of the investigation. She asked for the hearing to be adjourned and at the reconvened hearing she was dismissed. Again the EAT held that there had been a breach of the statutory procedures, in that she should have known the case against her before the initial hearing and it was irrelevant that the meeting had been reconvened.
While these cases show that, to some extent, the procedures did not affect the case law prior to 2004, in that the decisions were likely to be the same before the introduction of the statutory regime, there were other areas that caused problems. For example, what constituted a meeting? What were reasonable steps an employee had to take to make a meeting? What constituted unreasonable delay? What was reasonable in terms of timing and location? What constituted writing? What happened if an employee didn’t turn up to a meeting and at what stage, if any, could an employer hold a meeting in the employee’s absence? None of these was resolved, which meant that cases were going to the tribunals on an interpretation of the Act and the Regulations, so increasing, rather than reducing, the tribunal workload. Furthermore, critics such as Prophet above, did not agree with the overturning of Polkey, and Pitt (2008) notes that the exclusion of suspension on full pay, and warnings from the requirement to follow the procedure, was controversial. In addition, the refusal of the Government to make the procedures contractual meant that a failure to follow the procedure for any disciplinary action short of dismissal left the employee with no remedy. (5) The paragraph sums up the complexity of the regulations from the writers point of view and also uses criticisms from other sources.
In addition to the statutory disciplinary procedures, the Employment Act 2002 also introduced statutory grievance procedures. By s 32, an employee who did not follow the grievance procedures was unable to later present a claim to an employment tribunal. This was considered to an unprecedented restriction on employee rights, particularly where the employer had committed a repudiatory breach of contract and the employee wished to resign and claim constructive dismissal. Where the procedures applied, the time limit for presenting a claim to a tribunal was increased to six months by regulation 15 of the Employment Act 2002 (Dispute Resolution ) Regulations 2004. As with the disciplinary procedures, there was a standard and a modified procedure. Under the standard procedure, the employee had to put his grievance in writing, to the employer, the employer had then set up a meeting and there was a further right of appeal. The modified procedure consisted of a written grievance by the employee and a written response from the employer. This could only be used when employment had ended and the employee agreed in writing to use the modified procedure. (6) This paragraph shows a detailed reading of the question. The procedures covered both dismissal/discipline and grievances and the answer acknowledges this.
Similar problems with the interpretation of the disciplinary procedures also applied to the grievance procedures. In Shergold v Fieldway Medical Centre (2006) the employee resigned and complained about unfair dismissal. After meeting with her employer she was advised to put in a formal grievance but did not do so. The EAT said that her letter of resignation constituted the grievance. Similarly, in Commotion v Rutty (2006), a letter requesting flexible working, which had been refused, was also held to constitute a grievance and in Galaxy Showers v Wilson (2006) it was stated that to comply with the procedures, the letter merely had to state the grievance, it did not need to state that the employee wished to take things further. However, in City of Bradford Metropolitan District Council v Pratt (2007), it was held that where the modified procedure was used, given there was no meeting, the employee had to write down the grievance and all the grounds for it. In the case, Pratt had put in a post employment grievance about pay. Her written grievance did not include the grounds for her complaint, as she didn’t name comparators. The EAT said that she had not complied with the procedures and thus her claimed was barred. (7) This paragraph uses case law to demonstrate the argument but doesn't spend a lot of time writing out the facts of cases. It is only necessary to give a brief account of the facts to allow the reader to understand the decision.
It is obvious from the cases above that the procedures created more work for tribunals. The Government had said that it would review the procedures after three years of operation and this came in the form of the Gibbons Review (Better Dispute Resolution) in March 2007. While the review acknowledged that the idea of the statutory procedures was a good one because there were benefits to workplace dispute procedures, it also stated that the new procedures were almost a total failure. Gibbons gave three reasons for this: first, the regulations exacerbate and accelerate disputes; second, complexity; and third, the fact that the regulations were not relevant to all situations (Sanders 2009). Gibbons also suggested that the procedures may have caused a rise of 30 per cent in tribunal applications. As such, the review recommended the abolition of the procedures. This was achieved by the Employment Act 2008, which also allows tribunals to increase compensation where the employer has failed to observe the revised ACAS code (2009).
The basic premise in the Employment Act 2002 was a good idea, in that it encouraged all employers to have basic procedures within the workplace. However, a number of issues led to their almost universal criticism. The restriction on employee rights, the statutory overruling of Polkey, the exclusion of suspension on full pay and warnings from the procedure and the lack of a remedy for where the procedure was not followed in non dismissal cases, led many academics to see the procedures as pro employer and anti employee. In addition, the detailed requirements in the Dispute Resolution Regulations, which led to cases coming before tribunals on questions of interpretation, thus increased, rather than decreased, the burden on both the tribunals and Employers (Gibbons). As such, the procedures failed to achieve their intended aim. (8) The conclusion summarises the arguments already made and doesn't introduce new material.
The procedures contained in the Employment Act 2002 (Dispute Resolution) Regulations 2004 were introduced to reduce the number of cases coming before tribunals and encourage work place resolution of disputes. The result, however, was the opposite and a lack of confidence in the procedures led to their repeal.
Critically evaluate the reasons why the statutory procedures were so unsuccessful.
The Employment Act 2002 introduced for the first time the concept of statutory dispute resolution procedures, by introducing procedures for dealing with both disciplinary matters and grievances. The aim of the new procedures was to reduce the amount of claims heard by tribunals and encourage employers to use basic procedures before taking disciplinary action. (1) The answer gives no evidence that this was the aim. The 2002 Act laid out the basic procedures, with the Employment Act 2002 (Dispute Resolution) Regulations 2004 providing more detail. The procedures came into force in October 2004. At the same time, ACAS issued a revised Code of Practice on Disciplinary and Grievance Procedures (2004).
The disciplinary and dismissal procedures consisted of a standard and modified procedure. They applied to all cases, except certain dismissals during a strike or other industrial action, where the employer's business suddenly ceased due to an unforeseen event, where an employee could not continue to work without breaking the law and where the dismissal was one of collective redundancies involving 20 or more employees.
The standard procedure in Schedule 2 Part 1 of the 2002 Act, consisted of: notifying the employee in writing of the alleged misconduct, characteristics or other circumstances that led the employer to contemplate dismissal or disciplinary action and inviting the employee to a meeting; holding a meeting before deciding on any action (except in the case of a disciplinary suspension) and then informing the employee of the outcome and of the right to appeal; holding an appeal if required and informing the employee of the final decision. The employee had to take all reasonable steps to attend the meetings. Each step had to be taken without unreasonable delay, the timing and location of the meetings had to be reasonable, both the employer and employee had to have an opportunity to state their case and at the appeal, the employer should be represented if possible, by a more senior manager than the first hearing.
Early cases discussed the amount of information that should be given to the employee. In Alexander v Brigden Enterprises (2006), the dismissals were for redundancy. The EAT held that the employer had to tell the employee why the redundancies were happening and why he had been selected. In YMCA Training v Stwewart (2006) the EAT held that although the employer did not have to detail all of the evidence against an employee, the employee should have enough information to be able to answer the case against him.
The modified procedure applied in cases of gross misconduct and consisted of notifying the employee in writing of the alleged misconduct that led to dismissal and informing him of the right to appeal, and  holding an appeal and informing the employee of the final outcome.
Originally, the Government intended to make the procedures a contractual term in all employees' contracts. A consequence of this would have made any breach of procedures a breach of contract claim in addition to the other rights provided, and it may be this influenced the Government to make the procedures non contractual. Scott-Davis v Redgate Medical Services (2007) made it clear that there was no free standing right to sue for a breach of procedures if the employee did not have the continuity to claim unfair dismissal, except in the case of an automatic unfair dismissal, where no continuity is needed (RKS Services v Palen (2007)).
The procedures were regarded as a minimum. Breach of them by the employer was an automatic unfair dismissal and compensation could be increased by between 10 per cent and 50 per cent. Compensation could also be reduced if the failure to comply with the procedures was the fault of the employee. Given that they were a minimum, in some cases larger employers may have had procedures that had additional steps, such as an investigative hearing or two appeals. Section 98A of the Employment Rights Act 1996 provided that where an employer had complied with the statutory procedures but failed to comply with his procedures that were over and above the statutory ones, that failure would not render the dismissal unfair if the employer could show that the breach of his own procedures made no difference to the final outcome. This was a statutory overruling of the House of Lords decision in Polkey v A E Dayton Services Ltd (1987). (2) While Polkey is a famous case, it is still important to give the outcome and its consequences. This was the subject of much criticism. (3) The answer makes a statement that s 98A was the subject of much criticism without any evidence.
It was clear from decisions under the procedures that the tenets of the previous law were still relevant. (4)
Again, a statement is made but is not explained. Why is it clear that the tenets of the previous law were still relevant?
In Premier Foods plc v Garner (2007) the claimant was one of three who received a final warning after disciplinary proceedings. All three appealed and at the appeal two employees claimed that they were covering for Garner. Garner was suspended and at a hearing two days later, was dismissed. The EAT held that the dismissal was unfair as the employer had not observed the statutory procedures. The employer should have started the procedures again when new evidence came forward and allowed Garner enough time to consider the case against her. In Bowen v Millbank Estate Management Organisation Ltd (2007) Bowen was invited to a disciplinary hearing and only at that hearing did she know the details of the investigation. She asked for the hearing to be adjourned and at the reconvened hearing she was dismissed. Again the EAT held that there had been a breach of the statutory procedures, in that she should have known the case against her before the initial hearing and it was irrelevant that the meeting had been reconvened.
While these cases show that, to some extent, the procedures did not affect the case law prior to 2004 (5)
Again, no explanation as to why the procedures did not affect the case law prior to 2004.
, there were other areas that caused problems. For example, what constituted a meeting? What were reasonable steps an employee had to take to make a meeting? What constituted unreasonable delay? What was reasonable in terms of timing and location? What constituted writing? What happened if an employee didn't turn up to a meeting and at what stage, if any, could an employer hold a meeting in the employee's absence? None of these was resolved, which meant that cases were going to the tribunals on an interpretation of the Act and the Regulations, so increasing, rather than reducing, the tribunal workload.
In addition to the statutory disciplinary procedures, the Employment Act 2002 also introduced statutory grievance procedures. By s 32, an employee who did not follow the grievance procedures was unable to later present a claim to an employment tribunal. Where the procedures applied, the time limit for presenting a claim to a tribunal was increased to six months by regulation 15 of the Employment Act 2002 (Dispute Resolution) Regulations 2004.  As with the disciplinary procedures there was a standard and modified procedure. (6)
While the answer acknowledges that the procedures also covered grievances, it doesn't explain that the modified grievance procedure could only be used after employment had ended and the consequences of this.
Similar problems with the interpretation of the disciplinary procedures also applied to the grievance procedures. In Shergold v Fieldway Medical Centre (2006) the employee resigned and complained about unfair dismissal. After meeting with her employer she was advised to put in a formal grievance but did not do so. The EAT said that her letter of resignation constituted the grievance. Similarly, in Commotion v Rutty (2006) a letter requesting flexible working, which had been refused, was also held to constitute a grievance, and in Galaxy Showers v Wilson (2006) it was stated that to comply with the procedures, the letter merely had to state the grievance, it did not need to state that the employee wished to take things further. (7)
The answer has missed the Pratt case showing the problems with the modified procedures.
It is obvious from the cases above that the procedures created more work for tribunals. The Government had said that it would review the procedures after three years of operation and this came in the form of the Gibbons Review (Better Dispute Resolution) in March 2007. While the review acknowledged that the idea of the statutory procedures was a good one because there were benefits to workplace dispute procedures, it also stated that the new procedures were almost a total failure. (8) The answer is correct in the Gibbons conclusions but doesn't say why such conclusions have been reached. As such, the review recommended the abolition of the procedures. This was achieved by the Employment Act 2008, which also allows tribunals to increase compensation where the employer has failed to observe the revised ACAS code (2009).
The basic premise in the Employment Act 2002 was a good idea, in that it encouraged all employers to have basic procedures within the workplace. However, a number of issues led to their almost universal criticism. As such, the procedures failed to achieve their intended aim. (9) While there is a conclusion, it doesn't draw together previous arguments and is rather abrupt.
The procedures contained in the Employment Act 2002 (Dispute Resolution) Regulations 2004 were introduced to reduce the number of cases coming before tribunals and encourage work place resolution of disputes. The result, however, was the opposite and a lack of confidence in the procedures led to their repeal.
Critically evaluate the reasons why the statutory procedures were so unsuccessful.
In 1971 the Industrial Relations Act was enacted, which introduced the concept of unfair dismissal into the law of Britain. It provides that an employer must have a fair reason to dismiss an employee and must act as a fair employer before dismissing. The law has been around for some time now and the existing law is found in the Employment Relations Act 1999. (1)
This is totally irrelevant to the answer and is factually wrong as the law relating to unfair dismissal is in the Employment Rights Act 1996.
The Employment Rights Act 2002 introduced for the first time the concept of statutory dispute resolution procedures, by introducing procedures for dealing with disciplinary matters. The 2002 Act laid out the basic procedures, with the Dispute Resolution Regulations 2002 providing more detail. The procedures came into force in October 2004. At the same time, ACAS issued a revised Code of Practice on Disciplinary and Dismissal Procedures (2004). (2)
The answer starts to address the question but again there are three mistakes in this paragraph. It was the Employment Act 2002, the Employment Act 2002 (Dispute Resolution) Regulations 2004 and the Code of Practice on Disciplinary and Grievance Procedures 2004.
The disciplinary and dismissal procedures consisted of a standard and modified procedure. They applied to all cases relating to disciplinary matters. (3)
Again, the answer says that the procedures applied to all disciplinary cases; they did not.
The standard procedure in the regulations consisted of: writing to the employee inviting him to a meeting; holding a meeting and then informing the employee of the outcome and of the right to appeal; holding an appeal if required and informing the employee of the final decision. The employee had to take all steps to attend the meetings. (4) More inaccuracies, showing how explicit you must be in law. The employer had to tell the employee of the alleged misconduct and the employee had to take all reasonable steps to attend the meetings.
Early cases discussed the amount of information that should be given to the employee. In Alexander v Brigden Enterprises (2006)Â the dismissals were for redundancy. The EAT held that the employer had to tell the employee why the redundancies were happening and why he had been selected. In YMCA Training v Stewart (2006) the EAT held that although the employer did not have to detail all of the evidence against an employee, the employee should have enough information to be able to answer the case against him.
The modified procedure applied in all cases of gross misconduct and consisted of telling the employee the misconduct that led to dismissal and informing him of the right to appeal, and  holding an appeal and informing the employee of the final outcome. (5) The modified procedure still required the employer to inform the employee in writing not just tell him.
Originally, the Government intended to make the procedures a contractual term in all employees' contracts. They didn't do so but Scott-Davis v Redgate Medical Services (2007) made it clear that there was a free standing right to sue for a breach of procedures if the employee did not have the continuity to claim unfair dismissal. (6) Scott-Davis made it clear that there was no free standing right to sue for a breach of procedures. .
Breach of the procedures by the employer was an unfair dismissal and compensation could be increased between 10 per cent. (7) Inaccurate detail in respect of how much compensation could be increased, and it was an automatic unfair dismissal.
In Premier Foods plc v Garner (2007) the claimant was one of three who received a final warning after disciplinary proceedings. All three appealed and at the appeal two employees claimed that they were covering for Garner. Garner was suspended and at a hearing two days later was dismissed. The EAT held that the dismissal was unfair as the employer had not observed the statutory procedures. The employer should have started the procedures again when new evidence came forward and allowed Garner enough time to consider the case against her. (8)
Garner is just put in. There is no explanation why it was chosen and it doesn't really address the question.
While these cases show that, to some extent, the procedures did not affect the case law prior to 2004, there were other areas that caused problems. For example, what constituted a meeting? What happened if an employee didn't turn up to a meeting? None of these was resolved, which meant that cases were going to the tribunals on an interpretation of the Act and the Regulations. (9)
Needs much more on the issues arising from the regulations and only now is addressing the question.
It is obvious from the cases above that the procedures created more work for tribunals. Gibbons reviewed the regulations. He stated that they were almost a total failure. (10) Very basically put. Why did Gibbons review the regulations? He stated that the procedures were a failure but why? Â As such, the regulations were abolished. (11) The answer has no conclusion.
Chapter 1: The contract of employment
Chapter 2: Equal pay
Chapter 3: Discrimination
Chapter 4: Termination of employment
Chapter 5: Unfair dismissal
Chapter 6: Redundancy payments
Chapter 7: Collective labour relations
Click on the glossary term to see the definition
Chapter 1
Chapter 2
Chapter 3
Chapter 5
Chapter 6
Chapter 7