D-day for disciplinary and dismissal codes
From April 6 last, the statutory grievance, disciplinary and dismissal procedure has been replaced in England, Wales and Scotland by non-statutory procedures which are discretionary, rather than mandatory.
The changes mean that there is no need to raise a written grievance with an employer before submitting a claim to an industrial tribunal.
These changes did not come into force in Northern Ireland on this date and the current dispute resolution procedures will continue to apply.
The Department for Employment and Learning will be consulting on the possible reform of employment rights disputes in Northern Ireland in the coming weeks.
Since April 2005 all employers must follow minimum procedures for resolving employment disputes.
The minimum procedures are for dealing with grievances, disciplinary action and dismissal.
All employers (regardless of the number of their employees) must issue to their employees a written statement setting out all aspects of the dismissal, disciplinary and grievance procedures. An employee can use the statutory grievance procedure if they are aggrieved about an action their employer has taken, or is contemplating taking, in relation to them and for which they could make a claim to an industrial tribunal.
The employer’s action could include warnings, both written and oral, investigatory suspensions or action giving rise to a constructive dismissal.
In most cases, an employee cannot make a claim to an employment tribunal unless they have first raised a grievance with their employer under the statutory grievance procedure.
The standard grievance procedure is a three-step process. Under the standard procedure:
- Step 1 — The employee must tell the employer in writing that they have a grievance — this is called a Step 1 letter; and
- Step 2 — The employer must invite the employee to a meeting to discuss the grievance; and
- Step 3 — The employer must hold an appeal meeting if the employee wishes to appeal the employer’s decision
There is a modified grievance procedure which applies if the employee is no longer working for the employer.
It is a two-step process, the first step is that employee must set out in writing their grievance and the basis for it and the second step is that the employer must set out their response to the Step 1 letter in writing and send it to the employee.
The statutory dismissal and disciplinary procedures will apply when an employer contemplates dismissing or taking relevant disciplinary action against an employee. The employer does not have to use the statutory dismissal and disciplinary procedure for all types of disciplinary action.
The statutory dismissal and disciplinary procedures applies to disciplinary action based wholly or mainly on the employee’s conduct or capability. However, an employer does not have to use the statutory procedures where there is no penalty, for example, the issuing of warnings (even final warnings) or suspensions on full pay.
This means that an oral or written warning, or suspending the employee on full pay, because of a conduct or capability issue, will not count as the first step of the standard disciplinary procedure.
The standard dismissal and disciplinary procedure is a three-step process. Under the standard procedure, the employer must:
- Step 1 — Tell the employee in writing why they are contemplating disciplinary action or dismissal; and
- Step 2 — Hold a meeting with the employee; and
- Step 3 — Hold an appeal meeting if the employee wishes to appeal
Further information is available from your local CAB or from the Department for Employment and Learning by telephoning 028 9025 7580 or from their website at www.delni.gov.uk/er
Siobhan Harding is an Information and Policy Officer with Citizens Advice