HR Advice from 6th April 2009? The new DDP code of practice.
Posted: Sunday, April 05, 2009
by Meera Yagnik
Temple Court Chambers
The statutory dispute resolution procedures that had been introduced in 2004 have now been revoked by the Employment Rights Act, 2006. Some may say, well so what?
The truth is these procedures where introduced with the sole intent to help employers deal with workplace disputes in a more dignified and swift fashion. It was hoped that this would enable resolutions to problems being achieved and ideally reduce the number of claims submitted to the employment tribunal. The reason being that there was a procedure that needed to be followed before an employee could be disciplined, dismissed and another procedure for dealing with grievances.
Indeed, this is exactly what happened, as non compliance with the 2004 DDP procedures meant that the employee would get an automatic up lift of up to 50 per cent in any award, and, the non compliance by the employer to the procedures itself, would mean that there was an automatic claim for wrongful or unfair dismissal. I hope that people can see why these procedures were hated by employers. It made disciplining and dismissing employees complicated, which small firms simply could not spend time and effort following. The costs of following them cost the business too much. Indeed, having adviced SME the recurrent theme that I came across was, I cannot afford to give them notice, this problem needs to be dealt with now, and, I cannot afford to keep the employee on suspension pending the outcome of the disciplinary process. Further, they were unable to grasp the legal and technical rules surrounding the procedures themselves. Put it simply they could not afford to do the HR that came with having to comply with the procedures. The Federation of Small Businesses itself was inundated with calls from their clients asking them to lobby on their behalf for the end of the legal bureaucracy. Even HR professionals found the rules complicated and needed expert advice on the technical issues.
Given the credit crunch small firms simply did not have the time to follow the procedures before dismissing an employee, and, most firms simply took the risk of an unfair dismissal claim when it came to making employees redundant. Most firms told me in no uncertain terms that if the ex employees bought a claim they will simply have to file for liquidation. Quite an extreme reaction, when I kept stressing to them of the importance to follow the protocol. But it was the reality of the economic crisis their firms where facing and saving money was essential otherwise they would go under, as banks had simply stopped lending them any money for the capital to pay employee wages and decisions had to be made without delay. Dignity simply was too expensive in most firms view. The procedures were too expensive to be complied with. Consultation with employees before making them redundant simply too expensive to follow, and, the meetings simply introduced another obstacle.
So, the death of the procedures has now come, and a new dawn will be broken on the 6 th April 2009. Firms no longer have to follow any disciplinary or dismissal procedures before they dismiss or discipline an employee. However, the ACAS code of practice should be followed and if you wish to rebut an unfair dismissal claim should follow at a minimum what has been set out below.
However, as a word of caution, the truth is if no procedures are followed, it will be very difficult for an employer to demonstrate to a tribunal why the employer terminated the employee's contract, or disciplined the employee and further very difficult to rebut any discrimination claims that the employee may pursue. The positive of the revocation is that there is no longer an automatic uplift if the procedures have not been followed which was the case previously.
The new procedures are contained in the ACAS code of practice and essentially, the code offers guidance on how to deal with disciplinary and grievance issues that arise in the work place. The code stipulates the following:-
- Inform the employee in writing what the issues are and the likely repercussions from the actions the employer is taking, the evidence relied upon, and that the employee has a right to be accompanied.
- The right to be accompanied is now a statutory requirement and the employee needs to be explicitly informed of this right.
- The meting should be held without delay, there is no minimum notice period that needs to be given to an employee save that the employee should be given a reasonable time to prepare for the meeting.
Another important change by the new procedures are that the employee who has left employment or been dismissed, does not need to raise a grievance with the employer first before submitting a claim at the employment tribunal. Previously this was a requirement.
The cut of dates are if the events pertaining to the grievance arise prior to 6 th April 2009, then employers will still need to deal with the grievance and the employee will have to follow the old rules. However, for incidents arising from 6 th April 2009 the employee does not have to submit a grievance before submitting a tribunal claim. So for the time being the old and new rules will be running simultaneously. Watch out for the trigger dates to know which rules will apply to an individual case.
Just what procedures should or should not be followed from 6 th April will be determined by case law. I suspect on whether or not a dismissal is fair or unfair will be determined by the principles in the Polkey case, but only time will tell.
Meera Yagnik
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