Podcast: the Fair
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.
Podcast: the Fair
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.