Following a review of the statutory dispute resolution regulations that came into force on 1 October 2004, the government has repealed them with effect from 6 April 2009.
The new system to replace them is much less concerned with the formal mechanics of how to run a grievance or disciplinary hearing and more with the fairness of the procedure. The government has also introduced a set of transitional arrangements which apply until the new procedures are fully in place.
When do the new rules apply and who do they cover?
The rules apply from 6 April 2009, so any complaint about something that happened wholly on or after that date must be pursued under the new rules.
They apply to employees only, not workers. In other words, anyone who has a contract of employment.
What do the new rules state?
The new rules do not actually stipulate precise steps that employers and employees must follow. Instead they provide basic guidance for handling grievances and disciplinaries through a statutory code of practice produced by ACAS (the government's conciliation agency).
The code emphasises the importance of trying to resolve disciplinary and grievance issues informally at the workplace, or by involving a mediator before lodging a formal grievance or an employment tribunal claim.
If it cannot be resolved informally, the code sets out the basic requirements of fairness that are applicable and provides what ACAS considers to be the standard of reasonable behaviour in most instances. It has also produced guidance to help everyone understand it.
The code of practice does not apply to redundancy dismissals, failures to renew fixed term contracts or collective grievance situations.
What does the code of practice state?
In general terms, it states that:
- Employers and employees should raise and deal with issues promptly and should not unreasonably delay meetings, decisions or confirmation of those decisions
- Employers should carry out any necessary investigations to establish the facts of a potential disciplinary issue
- Employers should inform employees of the basis of the problem and give them an opportunity to put their case before making any decisions
- Employees should set out a potential grievance in writing, having tried to resolve it informally first of all
- Employers should allow employees to be accompanied at any formal disciplinary or grievance meeting
- Employers should allow employees to appeal against any formal decision
What happens if the parties do not follow the code?
If either the employer or the employee does not follow the code, an employment tribunal has to decide whether that was unreasonable or not by taking various factors into account, such as the size of the business.
Tribunals can adjust awards up or down by up to 25 per cent if they think that either the employer or employee unreasonably failed to follow the code.
What are the interim arrangements that apply to grievances?
The 2004 regulations required employees to follow a three-step grievance procedure before they could submit a tribunal complaint. Under the new arrangements, this bar won't apply if the complaint is about something that happens "wholly on or after 6 April".
However, the old regime (submitting a written grievance, attending a meeting, and then attending an appeal) will apply if the date of the action that the employee is complaining about (called the "trigger event") either:
- takes place wholly before 6 April; or
- starts before 6 April and carries on after it
If it does, employees must either trigger the old grievance procedure by lodging a written grievance or lodge a tribunal claim before a certain date. If the trigger event takes place completely on or after 6 April, the statutory grievance procedure does not apply.
What are the interim arrangements that apply to disciplinaries?
Similarly, the 2004 regulations required employers to follow a three-stage procedure if they wanted to dismiss an employee or discipline them (beyond an oral or written warning) because of something to do with their conduct or capability. This involved giving employees a written statement, having a meeting with them and then facilitating an appeal.
Again, a trigger event will decide whether the old regime or the new arrangements apply. The 2004 regulations will still apply if, on or before 5 April 2009, the employer:
- sent a step 1 letter to the employee, or
- held a step 2 meeting, or
- actually dismissed the employee or imposed "relevant disciplinary action" over and above an oral/written warning on grounds of conduct or capability
So even if the penalty was imposed on or after 6 April, the old regime applies if the disciplinary process starts before then. But when the entire process starts on or after 6 April, the new arrangements apply.
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Under the Working Time Regulations 1998, as from 1 April 2009 workers are entitled to 5.6 weeks' paid annual leave (28 days for a worker working a five-day week, which can include public and bank holidays). But does the same apply to holiday pay when they are off sick and not able to take their leave? In Stringer and ors v Her Majesty's Revenue and Customs, the European Court of Justice (ECJ) said that it does.
What happened?
This case concerned two different categories of workers. The first was on indefinite sick leave. During that time she asked to take annual leave within two months after her request but her employer refused. The workers in the second category had been on long-term sick leave prior to their dismissal. As they had not taken any paid annual leave during the holiday year because of sickness and could not take it any other time, they claimed payment in lieu.
The employment tribunal said the workers were entitled to accrue and be paid for their statutory minimum annual leave entitlement, and the Employment Appeal Tribunal agreed. However, the Court of Appeal said workers could not claim holiday pay when their entitlement to sick leave had run out and that they forfeited the right to compensation for holiday not taken if their employment was terminated during the leave year. The Law Lords referred the case to the ECJ.
Holding that the right to annual leave is a fundamental social right, the ECJ made clear that the right to sick leave was not governed by community law, but by member states themselves. That meant they could either allow or deny workers the right to take leave when they were off sick. But it added that if member states decided to prohibit workers from taking paid annual leave during the actual period of sick leave, they had to let them take their leave some other time.
And if someone was off sick, the Court said that member states could not require them to have actually worked during that year to accrue their entitlement. They could only deny paid holiday at the end of a leave year or of a carry-over period if the worker concerned had had the chance to exercise their right to the leave.
It also ruled that workers do not lose their right to paid annual leave at the end of the leave year if they had been off sick for the whole or part of the leave year and lost their job at the end of it, if their incapacity was the reason for losing their job. And if the worker's employment does come to an end, the ECJ said that they were still entitled to an allowance in lieu of the leave that they could not take (at their normal salary) and employers must ignore sickness absence when calculating what they were owed.
The case will return to the House of Lords probably later this year, both to consider the effect of the ECJ judgment and to decide whether a complaint about unpaid annual leave can be brought as a claim for deduction from wages.
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Under the religion and belief regulations, employers cannot discriminate against workers for their religious beliefs. However, the Employment Appeal Tribunal (EAT) in Chondol v Liverpool City Council said that there was a difference between dismissing someone because of their religious beliefs and dismissing them for inappropriately foisting those beliefs on others.
What happened?
Naphtali Chondol, a social worker and committed Christian, was dismissed on 24 May 2007 for gross misconduct, following concerns that he was inappropriately foisting his religious beliefs on service users. The Council was also concerned he had breached its lone working policy by taking a service user to his home without a risk assessment having been carried out. Mr Chondol knew that the Council prohibited social workers from promoting their religious beliefs whilst at work.
The Council was also concerned that he had:
- Breached health and safety procedures and potentially placed people at risk
- Failed to follow correct procedures in relation to visiting service users outside of his normal working hours
- Failed to follow correct procedures in relation to the completion of incident reports
Mr Chondol claimed unlawful discrimination contrary to the Employment Equality (Religion or Belief) Regulations 2003, among other things.
The tribunal accepted that Mr Chondol had been treated less favourably but concluded that the reason for the treatment was not because he was a Christian, but because he had been improperly foisting his personal views on service users. It was satisfied that the Council would have acted in the same way regardless of what religion or strongly held belief was being promoted.
The EAT rejected the appeal and commented that rather than getting bogged down in a debate about "the correct characterisation of the comparator", tribunals should focus "on the fundamental question of the reason why the claimant was treated in the manner complained of", as the tribunal had done in this case.
It concluded that the distinction made by the tribunal between Mr Chondol's religious belief on the one hand and "the inappropriate promotion of that belief" on the other was entirely valid, although tribunals had to be clear that it reflected the employer's true reason for dismissal.
The Council had not, therefore, discriminated against him as it would have treated "other persons" in the same circumstances in the same way.
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The decision by the European Court of Justice (ECJ) last month in what has become known as the "Heyday challenge" was good news for employers.
It said that the provisions in the Employment Equality (Age Discrimination) Regulations 2006 requiring employees over a certain age to retire fell within the scope of the European Equal Treatment Framework Directive.
It also ruled that the UK regulations did not have to give a precise list of the circumstances in which discrimination was justified, although it did say that the UK's compulsory retirement provisions would have to be justified to a "high standard of proof".
The onus is now on the government to prove in the High Court that making workers retire at 65 can be justified by a legitimate aim within the meaning of the directive, and that the means used to achieve that aim were appropriate and necessary.
Heyday (an offshoot of Age Concern) had argued that, by forcing workers to retire at 65, the Government had not implemented the provisions in the directive correctly. It also argued that the justification defence for direct and indirect age discrimination did not properly implement the directive either.
Age Concern predicts that the UK government will struggle to justify its national default age when the case returns to British courts because of the high hurdle that it has to overcome. So watch this space.
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