STATUTORY DISMISSAL AND DISCIPLINARY PROCEDURES and
STATUTORY GRIEVANCE PROCEDURES (Page 1).

The law:
Employment Rights Act 1996;
Employment Relations Act 1999;
Employment Act 2002 (Chapter 1 of Part 1 of Schedule 2 and paras. 6 and 9 of Schedule 2);
Employment Act 2002 (Dispute Resolution) Regulations 2004 SI 2004/752.
___________________________________________________________________________
Updated: 01 May 2008.

See also the ACAS Code of Practice on Disciplinary and Grievance Procedures. This must be taken into account by tribunals in any case where its provisions are relevant to the determination of any question arising in the proceedings: s.207(2) Trade Union and Labour Relations (Consolidation) Act 1992.

Guidance on the Act and the Regulations are available from the DBERR. They provide useful information but have no legal force. There are various guidance documents for lawyers, Human Resource specialists, owners of small businesses and employees.
__________________________________________________________________________

*********Note that these Regulations are likely to be repealed in April 2009*********

Main points:

these statutory procedures came into force in October 2004 and introduced the mandatory 'three step processes' which are to be followed in the workplace to handle either disciplinary and dismissal matters raised by an employer or grievances raised by an employee;

the statutory procedures require: (1) written notification of the issue to the other side; (2) a meeting between the two sides and, (if appropriate); (3) an appeal;

if either an employer or an employee respectively fails to use the minimum statutory procedures, then section 31 of the Employment Act 2002 requires an employment tribunal to increase or decrease any award of compensation;

section 31(3) of the Employment Act 2002 states that if an employer is in default of the relevant statutory disciplinary or dismissal procedures or grievance procedures, an employment tribunal shall increase the award of compensation payable to an employee by between 10% and 50%;

similarly, section 31(2) of the Employment Act 2002 states that if an employee is in default of the relevant statutory disciplinary or dismissal procedures or grievance procedures, an employment tribunal shall reduce the award of compensation payable to the employee by between 10% and 50%;

further, section 32(6) of the Employment Act 2002 states that an employment tribunal will not accept for determination a claim made by an employee if the employee had an obligation to initiate one or other of the statutory grievance procedures but has failed to do so at least 28 days before making the tribunal claim;

section 98A(1) of the Employment Rights Act 1996 states that where an employer has failed to initiate or complete a statutory disciplinary or dismissal procedure before dismissing an employee (who has been continuously employed by the employer for at least one year), the employer will be liable for an automatically unfair dismissal;

section 98A(2) of the Employment Rights Act 1996 states that where an employer has failed to follow a dismissal procedure (other than an applicable statutory disciplinary or dismissal procedure) then that failure shall not, in itself, render the dismissal unfair if the employer can show it would have decided to dismiss the employee even if the employer had followed the non-statutory procedure (for a case authority see: YMCA Training v Stewart, EAT Case No. 0332/06);

to enable the statutory disciplinary and dismissal or grievance procedures to be used effectively, Regulation 15(1) and (2) of the Employment Act 2002 (Dispute Resolution) Regulations 2004 automatically extends the time limit by three months for bringing claims in respect of which one of the statutory procedures applies if, at the expiry of the normal time limit, an employee had reasonable grounds to believe that a dismissal or disciplinary procedure was still being followed. It need not be a statutory procedure. It is immaterial whether a procedure was actually being followed. All that is required is that the employee reasonably believes some form of procedure is still being pursued.

Just as employers, employees, tribunals and the legal profession have got to grips with these statutory procedures, the government has announced its intention to abolish them and replace the mandatory procedures with '… an alternative mechanism to encourage compliance with a relevant statutory code on disciplinary, dismissal and grievance procedures… Under Part IV, chapter 3 of the Trade Union and Labour Relations (Consolidation) Act 1992 in that the Secretary of State and ACAS may issue Codes of Practice subject to Parliamentary approval ('the statutory codes'). Section 207 of the Trade Union and Labour Relations (Consolidation) Act 1992 provides that a statutory code, although not legally binding, is admissible in evidence and can be taken into account by the employment tribunal:' per the introduction of an Employment Bill in the House of Lords by Lord Jones of Birmingham on behalf of the government on 06th December 2007.

The explanatory note for this Bill states that '… the government has decided to repeal section 98A of the Employment Rights Act 1996 in its entirety, so as to revert to the situation which applied previously based on the Polkey line of cases.'

Prior to 2004, the handling of breaches of procedure in unfair dismissal cases was based on case-law and, in particular, the House of Lords judgment in Polkey v A. E. Dayton Services Ltd (1988) AC 344, which provided that a dismissal could be unfair purely on procedural grounds, but that in those circumstances the tribunal should reduce or eliminate the compensation payable (other than the basic award) to reflect the likelihood (if any) that the dismissal would have gone ahead anyway if the correct procedures had been followed. At the same time as the statutory procedures were introduced in 2004, a new section 98A was inserted into the Employment Rights Act 1996. This section provided that a dismissal where an employer does not complete the statutory procedures is automatically unfair: s.98A(1). Section 98A also provides that a tribunal may disregard any failure by the employer to comply with other (e.g. workplace-based) procedures in respect of the dismissal, if following such other procedures would have had no effect on the decision to dismiss: s.98A(2) (i.e. a limited reversal of the Polkey principle.) But, as stated above, '… the government has decided to repeal section 98A of ERA 1996 in its entirety, so as to revert to the situation which applied previously based on the Polkey line of cases.' Also to be repealed are sections 29-33 of the Employment Act 2002 that includes section 31 that provides for an increase or decrease in compensation.

Reason - the reason for the legislation, in force since 01 October 2004, is to regulate procedural requirements (i.e. the requirement to follow fair procedures when disciplining or dismissing) by means of the provisions of the new Act and Regulations just as substantive requirements (i.e. the requirement to have a substantive reason to dismiss) have been regulated by statutory legislation since 1971.

Purpose - the purpose of the relevant provisions of the Employment Act 2002 is to improve the resolution of disputes in the workplace - see Schedule 2 of the Employment Act 2002. This is so with the statutory grievance procedures, the purpose of which, like the civil court pre-action protocols, is to give the parties a chance to settle disputes before litigating.

___________________________________________________________________________
The Law:

Section 98A(1), Employment Rights Act 1996 -

an employee who is dismissed shall be regarded for the purposes of this part as unfairly dismissed if: (a) one of the procedures set out in part 1 of schedule 2 to the Employment Act 2002 (dismissal and disciplinary procedures) applies in relation to the dismissal, (b) the procedure has not been completed, and (c) the non-completion of the procedure is wholly or mainly attributable to failure by the employer to comply with its requirements.

Schedule 2, part 1, of the 2002 Act - step 1 (i), the employer must set out in writing the employee's alleged conduct or characteristics or other circumstances which led him to contemplate dismissing or taking disciplinary action against the employee; (ii) the employer must send a statement or a copy of it to the employee and invite the employee to attend a meeting to discuss the matter. Step 2 meeting: 2(i) the meeting must take place before action is taken except in a case where the disciplinary action consists of suspension, and 2(ii) the meeting must not take place unless, (a) the employer has informed the employee what the basis was for including in the statement under paragraph 1(i) the ground or grounds given in it, and (b) the employee has had a reasonable opportunity to consider his response to that information; (iii) the employee must take all reasonable steps to attend the meeting; (iv) after the meeting, the employer must inform the employee of his decision and notify him of the right to appeal against the decision if he is not satisfied with it.
___________________________________________________________________________