From 6 April 2009 the much criticised Statutory Dispute Resolution Procedures will be on the way out. Instead a new updated ACAS code of practice will be in place and below we summarise some of the main changes to the law.

The ACAS code of practice and non statutory guidance can be downloaded from the ACAS website.

Summary of the main changes are as follows:

• Instead of having to follow the previous three step procedures in relation to disciplinary matters, employers and employees will be expected to follow the revised ACAS code of practice. Likewise, instead of following the statutory grievance procedures, employers and employees will be expected to follow the code of practice (the code).
• Employers will no longer find that dismissals are “automatically unfair”. Instead the adherence to the code will be taken into account when considering whether or not any dismissals are unfair (largely a return to pre-2004 principles).
• In certain situations in which it applies, Tribunals have the discretion under the new code to order a compensation increase or decrease by up to 25%, if they find that either the employee or employer has unreasonably failed to follow the code.
• The code’s provisions are only relevant for the purpose of establishing liability in unfair dismissal cases.The code is not, for example, relevant to establish liability in complaints involving discrimination or equal pay, although please note that breach of the code can be taken into account by a Tribunal when considering compensation in such other claims.
• Are there any situations not covered by the code? The code does not apply to redundancy dismissals or non renewal of fixed term contacts.
• Will you need to change your disciplinary and grievance procedures in compliance with the code? The answer to this question depends on how thorough your present procedures are in place. Any employers without written procedures should certainly try to follow the code. The code is actually very short and straight forward. Those with procedures drafted in accordance with the previous statutory procedures are therefore likely to find that there has actually been a slight relaxation in the need to slavishly follow procedure. Most employers with sound written policies which have been reviewed in the last few years are likely to find that their procedures will not need much, if any, updating.
• Arguably the code now says that employers must inform employees of the right to be accompanied, previously the right was simply not to unreasonably refuse accompaniment.

Grey Areas

There are a number of provisions in the code which are presently unclear and which will have to await case law for example:

• There was some suggestion that the code contained a new requirement that the employee and/or the companion in a disciplinary can cross examine the employer and witnesses. The code however is vaguely drafted in this respect and the exact wording could be open to challenge. In our view turning a disciplinary hearing into a court hearing, whereby employees can cross examine live witnesses, is likely to lead to chaos. Arguably, the code suggests that employees should be given a reasonable opportunity to ask questions and they should be given the opportunity to put those questions to the employer who has taken the disciplinary - who can then carry on the investigation with the witnesses. Arguably the employee should also be given the opportunity to know the result of those further investigations and put any further points that they wish to.
• Another grey area is the code says that where an employee is “persistently unable or unwilling to attend a disciplinary meeting without good cause the employer should make a decision on the evidence available”. Some commentators have suggested that there will be trouble with the interpretation of the word “persistently”, as well as what will be a “good cause” for not attending a disciplinary hearing.
• A significant change introduced by the code seems to be that it is now advisable to allow employees to appeal at each and every stage of the disciplinary process (for example against a verbal or first warning) and not simply against dismissal or final written warnings.

Grievances

The grievance suggestions set out in the code are common sense and again, if your procedures comply with the previous laws then they are likely to comply with the code. Note that:

• It is important to note that employees will no longer need to lodge a written grievance in order to bring a Tribunal claim.
• The code sets out guidance on how to handle overlapping and grievance and disciplinary cases. The code suggests that where an employee raises a grievance during a disciplinary process the disciplinary process should wherever possible be temporarily suspended in order to deal with the grievance. Where the grievance and disciplinary cases are related, it may be appropriate to deal with both issues concurrently.
• A potential grey area is whether or not employers will have to hear grievances from former employees. The code does not say that the grievance procedures need to be followed with post employment grievances. It is debatable whether or not this is correct as many commentators point out this goes against the entire spirit of the code. We will have to await case law on the subject before being certain - and it will be safest for now to deal with the post employment grievances until matters are clarified.
• A final grey area is whether or not either party is released from their obligations under the code if the other side does not follow it. The Statutory Dispute Resolution Procedures, for all their problems, made this very clear. We may well have to wait for litigation on this area before advising more fully, however certainly from the employer’s perspective you should continue to try to comply with the code as far as is practicable, even if the employee appears to be in breach.

Transitional Provisions

Beware however that the old case law will continue to be around for some time yet as there are ‘transitional provisions’ - a dreadful legal title to describe the legislator’s fudge between when the old and new laws should apply.

You cannot therefore simply ignore the Statutory Dispute Resolution Procedures in their entirety just yet. In a dismissal case whether the old rules or the new code applies depends on whether the employer has sent a “step 1 letter” or held a “step 2 meeting” (these terms will be depressingly familiar to many of you) before 6 April 2009 (or indeed dismissed before 6 April 2009). In those circumstances the old Statutory Dismissal Procedures will apply. In a statutory grievance case the Statutory Grievance Procedures (i.e. the old rules) are abolished provided the action about which the employee complains occurred on or after 6 April 2009. Where the action occurred wholly before 6 April then the old procedures will apply. Where an action begins before 6 April but continues after that date then the situation becomes more complicated depending on the type of claim being brought and you should seek our advice.