New code on discipline, dismissal and grievance

The statutory disciplinary & dismissal and grievance procedures, introduced in October 2004, are shortly to be replaced.

These statutory procedures, brought in five years ago, were intended to reduce the number of claims made to employment tribunals. They introduced harsh penalties for employers or employees who failed to follow the rules, with adjustments to awards of between 10-50 per cent.

They have not been a success, resulting in litigation about the procedures themselves as well as employers facing the possibility of a technical finding of unfair dismissal against them regardless of the substance of a claim. From 6 April 2009 they are to be replaced with a code of practice on discipline and grievances.

However in practical terms when looking to discipline or dismiss an employee for misconduct and/or poor performance, the steps remain the same as now, namely:

• inform the employee of the problem
• hold a meeting with the employee to discuss the problem
• allow the employee to be accompanied at the meeting
• decide on appropriate action
• provide the employee with an opportunity to appeal.

(NB If an employer starts the procedure on or before 5 April 2009 by writing to invite the employee to a disciplinary hearing, the old procedure will apply.)

Although not legally binding, tribunals will continue to take into account compliance with the code. Penalties for non-compliance will be a little less harsh with adjustments to awards of between 0 and 25 per cent. Non-compliance will not automatically result in a finding of unfair dismissal.

Our advice is that employers should still follow a clear and fair procedure when disciplining or dismissing an employee. This will provide maximum protection should a claim result

As always, if you need commercial and pragmatic legal advice, we’re here to help so please get in touch.

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