Since 3 April 2011 there have been some changes to the workplace dispute resolution procedures in Northern Ireland.
As you may know changes came into force in April 2009 in England, Wales and Scotland to replace the existing statutory procedures with non-statutory procedures which are good employment practice rather than mandatory. Northern Ireland has not followed this model completely but has instead kept the existing statutory disciplinary and dismissal procedures essentially as they are but moved to a system similar to that in England, Wales and Scotland for dealing with grievances.
This means that there will no longer be the statutory three step procedure for dealing with grievances at work. Instead good practice will be set out in a new Code of Practice on disciplinary and grievance procedures from the Labour Relations Agency (LRA). Employees will remain encouraged to try and resolve the dispute informally with their employer and then take the three steps that were previously part of the statutory procedure namely:
- the employee should tell the employer in writing that they have a grievance;
- the employer should invite the employee to a meeting to discuss the grievance; and
- the employer should hold an appeal meeting if the employee wishes to appeal the employer’s decision.
As the grievance procedure is no longer statutory there is no statutory bar on an employee lodging a tribunal claim if he or she fails to comply with certain steps. However the tribunal will have the power to consider whether the employee acted reasonably in not following the LRA Code and if it decides the employee did not then it can reduce any subsequent award by up to 50%. The same sanction is available where the tribunal finds that an employer behaves unreasonably in this process.
The statutory dismissal and disciplinary procedures remain unchanged except in one area. Under the previous disciplinary and dismissal arrangements there was a facility to automatically extend the time available to the parties to resolve the matter by three months. That facility is now removed. If an employee wishes to make a tribunal claim they would need to do so within the normal time limit and cannot rely on an extension. However, as with grievances, there will remain discretion for tribunals to treat out of time claims as though they had been made in time.
The statutory dismissal and disciplinary procedures apply when an employer contemplates dismissing or taking relevant disciplinary action against an employee (certain action short of dismissing the employee which penalises them, for example, reducing their pay, suspending them on less than full pay or demoting them). The employer does not have to use the statutory dismissal and disciplinary procedures for all types of disciplinary action. The statutory dismissal and disciplinary procedures apply 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 as follows:
- Step 1 – the employer should tell the employee in writing why they are contemplating disciplinary action or dismissal; and
- Step 2 – the employer should hold a meeting with the employee; and
- Step 3 – the employer should hold an appeal meeting with the employee if they wish to appeal.
Further information on grievances, discipline and dismissal are available from your local CAB or from the Labour Relations Agency on 028 9032 1442. The new Code of Practice is available from the Labour Relation Agency’s website at www.lra.org.uk. Guidance can also be found on www.nidirect.gov.uk if you are an employee or worker and www.nibusinessinfo.co.uk if you are an employer.
Siobhan Harding is an Information and Policy Officer with Citizens Advice