Podcast: the Ugly
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 Ugly
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) 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? As such, the regulations were abolished. (11) The answer has no conclusion.