Procedural Fairness in Unfair Dismissal

adjective Fairness in Unfair DismissalRepeal of the transaction feign 2002 (Dis governe Resolution) Regulations 2004 A floor-In October 2004 the government introduced a statutory marginal disciplinal and grade map dealing with disputes in the turnplace. These procedures and related rules atomic repress 18 set out in the function playact 2002 ( broil Resolution) Regulations 2004 and state that employers es directial(prenominal) heed a marginal hammock and disciplinary procedure in the study or another(prenominal)wise dismissal exit be automatic bothy partial. When bringing a claim at the Employment court of justice for unsportsmanlike dismissal, employees ar as well entitled to additional compensation if these disciplinary and dismissal procedures are non adhered to. Although the aim of the Regulations was to encourage informal proclamation of disputes, more employers felt that they were too complicated and did non achieve the desired aim. Gibbons (2007 pg.24)1 sums up this view,The procedures are seen as a prelude to consumption tribunals, rather than a focusing of end problems in the surviveplaceThe Employment Bill 2007 because recomm breaks a vacate of the Regulations for what is hoped testament be a more ingenuous regime in every likelihood to come into force in April 2009.The RegulationsA measuring dismissal procedure as per the Regulations involves the future(a) third steps. The root is a letter which essential be direct to the employee setting out the flat coat for dismissal and inviting them to a face-off at a convenient date and place. The employee must be given measure in which to contain the letter and then has a duty having done so to engage whole healthy steps to attend the meeting. The second step involves the actual meeting which has to be conducted in a manner which enables both employer and the employee to explain their face. after(prenominal) the meeting the employee must be nonified o f the decision and proposed a adept of greet. The ordinal step would be the conjure up process and if the employee wishes to appeal, they must inform the employer who will then invite them to an appeal meeting. The onus is on the employee to take all likely steps to attend this appeal meeting and as off the beaten track(predicate) as is practicable a more senior manager from the governing should attend the appeal meeting.The appeal meeting must be conducted in the manner in which enables both the employer and the employee to explain their theatrical role. After the meeting the employee must be notified of the final decision. During every meeting in the process, the employee has a obligation to be accompanied by a work colleague or a foxiness union official. This attach to may address the hearing, gossip with the employee during the hearing and may in like manner sum up the employees mooring still when must not answer questions on behalf of the employee.In the case o f a scotch against an employer the same steps must be followed with the letter sent from employee to employer stating the nature of the grievance and asking for a meeting to be held. Where the employee has already left employment the Regulations provide for a modified procedure that does not require the Step 2 meeting.The problems created by the RegulationsWhen the Regulations came into force on the inaugural October 2004 the government resolved to revisit them after two years. The Department of dish out and Industry confirmed this in its Success at Work stem (2007 pg. 8)2This is a key part of DTIs work to simplify regulation, by removing submission costs and complexity, and addressing irritants for contrast and others affected by employment law, while ensuring that employee ripe(p)s are protected.The government then commissioned an independent report on the 12th December 2006 written by Michael Gibbons who was asked to assess all employment dispute resolution procedures inc luding suggestions for adapting the Regulations if he set them not to be look into for purpose. He interviewed over 60 employers, employees and in bourneediaries involved in dispute resolution. Gibbons in his report entitled Better scrap Resolution (2007 pg.5) states3,In conducting the freshen up I was struck by the overwhelming consensus that the intentions of the 2004 Regulations were sound and that thither had been a genuine attempt to keep them simple, and yet as formal polity they fuck off failed to produce the desired policy outcome. This is perhaps a unpolluted case of undecomposed policy, but inappropriately inflexible and prescriptive regulation.It became ostensible that the regulations did not state clearly what a written grievance was or what it was to contain. With no specific guidance on this, parties called for adjective hearings at the ET to put in whether the claimant actually put their grievance in writing and whether all of the claims that were found in t heir Claim Form had previously been evidenced in the grievance letter. The respondents were claiming that this was not the case and thitherfore on that point was no case to answer. thus although the procedures were clear as to the steps to follow in bringing a dispute insufficient guidance was given about each bring out up leaving Tribunals with an adjoin in the number and length of proceedings. Gibbons explains the difficulty with identifying what constitutes a grievance letter (2007 pg.8),comments in resignation letters and in 360-degree feedback forms ache been held to meet the requirements, so some employers smell it is required to check virtually and investigate all written communication that might be construed as a grievanceAlthough the intention of the regulations was for early informal resolution of disputes, the pen of the Step 1 letter and consequent meetings in coiffe step forward many issues taking up management cadence and proving stressful for employees. similarly the three step process as out crinkled above was not always adequate in all circumstances. Small backinges in grouchy name complained about the formal, one size fits all approach of the regulations. Gibbons explains (2007 pg. 8),the appeal stage is an unnecessary burden, especially for small businesses. The appeal will often times be to the same person who made the original decision. It quarter also be difficult in cases where employees have left the workplace. One business felt it necessary to follow the three-step procedures for each of their Christmas temporary staff originally they left a process which added no value.The main thrust of the contrary to the current regime is that it has created an unhealthy overlap between the resolution of disputes and the litigation procedure which should as far as possible be kept separate. For example the regulations stipulate that forward a claim is monastic rankd at the Employment Tribunal (ET) a grievance letter must be sent to the employer within three months of the alleged dismissal or conduct. Any wear of the procedure would allow the Tribunal to grant up to 50% increase if the fault was that of the employer or 50% reduction in the award depending on whether the fault was that of the employee. Of course apart from the event that it is not always flaccid to ascertain whose fault led to a collapse of procedure such(prenominal) stipulations and penalties typify that litigation has to be considered at an early stage when resolution of the dispute should be par numerate. Gibbon states (2007 pg.25),Both large and small businesses have reported that the number of formal disputes has risen. The follow-up has heard that 30 to 40% increases have been typical in the retail sector.Further complications arise where there are multiple claims for example in an equal pay case and the three step process has to be repeated many times creating an unnecessary administrative burden. The same burden is also felt where and employer explores to follow the disciplinary steps and at the same time the employee also seeks to quest after a grievance.It is not always clear how the two strands of the Regulations should operate in such circumstances, and employers can feel compelled to hold excessive numbers of meetings and relieve excessive numbers of formal letters to be sure of fulfilling the procedural requirements4The proposed reformsAs a result of the Gibbons Review, the Government held a computer address and the responses trustworthy formed the rump of the present reform proposals published in the Employment Bill 2007 which has received royal assent and is now the Employment Act 2008.The first major reform is for the Regulations to be come uped in their entirety in April 2009 and replaced with a revise ACAS recruit of make out (the polity) which has been concord in tipple form. thither will also be non statutory guidance also provided by ACAS. ACAS stands for the Advisory Con ciliation and Arbitration Service and currently offers employees an arbitration expediency as an alternative to resorting to proceedings. Also it has always provided a legislation for resolving disputes but it is only now being adapted and combine into statute. In actual fact the revised ACAS code provides for the same three step procedure but does not incorporate the same penalties and conditions as the Regulations. there have also been some additional requirements which seem to sparse towards ensuring that employees behave slightly. The draft mark is designed to provide introductory practical guidance for disciplinary and grievance procedures but is limited as it will not apply to dismissals as a result of redundancy5 or expiration of a fixed term contract.The inscribe describes the remit it covers6, disciplinal situations include misconduct and/or forgetful performance grades are concerns, problems or complaints that employees touch with their EmployersIt suggests in the tune-up of the cypher7 that employers and employees should try to resolve disputes between them. However if they cannot, they should seek the help of an independent third party inside or alfresco the physical composition. The Code provides that where the Employment Tribunal must ascertain compliance with the Code it will do this on a case by case basis taking into account the size and resources of the employer. Therefore unlike the Regulations there is no expectation that all business will comply with every provision in the Code providing greater flexibility for employers.In similitude to disciplinary procedures the first step is to establish the facts of each case by collating evidence and holding an investigatory meeting if necessary. The Code then states8,If it is obdurate that there is a disciplinary case to answer, the employee should be notified of this in writing. This proportion should contain sufficient information about the alleged misconduct or poor performanc e and its possible consequences to enable the employee to prepare to answer the case at a disciplinary meetingNew provisions provide for evidence collated including witness statements to be provided by the employer with the letter requesting a disciplinary meeting. Also an employee may call their own witnesses. The statutory right to be accompanied to this meeting heretofore stands however the Codes fury on reasonableness is evidenced where it states9,However, it would not normally be reasonable for workers to insist on being accompanied by a henchman whose presence would not prejudice the hearing nor would it be reasonable for a worker to ask to be accompanied by a companion from a remote geographical location if someone suitable and volition was available on site.The dispute Regulations had provided that on appeal the employer only had to make one attempt to reconvene the meeting however under the Code the employer has to show that the employee has persistently been unable or unwilling to attend before a decision can be made in their absence.10 If the employee reconciles to appeal, suit of appeal in writing must be submitted to the employer.11 This requirement was not found in the Regulations and the idea behind it is to ensure that further time is not spent discussing issues that have already been covered in the first meeting.In a case of a grievance for example sooner of the emphasis on a Step 1 grievance letter, the revised Code states12,If it is not possible to resolve a grievance informally employees should raise the matter formally and without unreasonable delayThe employee should inform the employer of the grievance preferably in writing and the letter should be addressed to the line manager. Unlike the Regulations, a claim would not be barred in absence of a grievance letter although a failure to post this letter would be a breach of the Code and may hand to a reduction in the award.The Code states that a meeting must be heard pursuant to t he letter and that the employee must have the right to be accompanied by a colleague or trade union official. As with the disciplinary procedure, the requirement here is that the right to be accompanied is reasonable. During the meeting the employer can ask for an adjournment in fix to carry out an investigation. There is also a right of appeal and subsequently the employee can decide to take the matter further and obey the case in the Employment Tribunal.The wise regime will not hold a dismissal to be mechanically unfair if there has been a breach in procedure. Employment Tribunals will have to decide cases on what is fair and reasonable and will have discretionary powers to sort out awards of up to 25% if either employer or employee has not followed the ACAS code. In relation to this provision the government report Resolving Disputes in the piece of work mention ( may 2008 pg.16) it states,This will be a power rather than a duty in resultant roleuate to allow the employment tribunals discretion to apply it in the interests of justice and equityIt is hoped that these reforms will give a higher direct of flexibility in resolving work place disputes and various businesses can tailor the new regime to their specific needs. The Government has also agreed as part of the reform to invest 37M into the ACAS helpline system in order to provide early mediation for workplace disputes that would otherwise result in tribunal claims. Resolving Disputes in the Workplace Consultation (May 2008 pg.16)13 states,The government considers the way forward should be a short non prescriptive Statutory Code setting out the principles of what and employer and employee must do supported by chockablock(predicate) statutory guidanceThe idea is that the new statutory code will provide guidance for employment tribunals and the non statutory guidance will be used by employers and employees. Where a grievance arises during a disciplinary process, the disciplinary may be suspended or both can be dealt with concurrently if related. The Code does not cover collective grievances which must be dealt with under the agreed collective grievances procedures agreed with trade unions.The likely final result of these reforms on employers and employeesIt is unlikely that the Code will have a major change on the dispute resolution process in the work place. The code incorporates the same three steps that were found in the Regulations. There is ease a penalty of an increase or decrease in the award up to 25% depending on whether the employer or employee is at fault.Because the employee is likely to suffer a reduction in compensation of up to 25 % the pressure to ensure a grievance letter is sent still remains. Although unlike the Regulations, the claim is not barred due to failure to lodge a grievance, the number of grievances brought by employees is not likely to be bring down for so long as there remains a penalty, albeit the employee at the grievance stage may not have considered litigation. So arguably there may not necessarily be reduction of time spent on hearing and processing grievances in the workplace.Also with the repeal of the Regulations there is no automatically unfair dismissal because of non compliance. Many have argued that this places fewer restrictions on unscrupulous employers therefore increasing the likelihood of litigation. There would need to be clear communication by the government and business to their employees as to how the new regime will work and arrangements need to be put in place for the mutation between the old and new procedures.As far as practical points flowing from the provisions of the ACAS Code, the following would ensure that employers are taking the right steps to ensure compliance although there still remains areas of unbelief that will only be made clear once the Code is put into practice.Mediation development should be provided for Human Resources staff to act as internal mediators and consider compili ng a list of good mediators outside the organisation.In the adit of the Code, it states that employees should be involved where appropriate in the development of rules and procedures so to this end it would be prudent if employers hold have-to doe withation meetings with employees and their Trade Union Representatives during the transition period between the Regulations and the Code.Guidelines should be provided as to how to provide a reasonable opportunity to call witnesses ( clause 12) and establish in policy that that the right to be accompanied is subject to considerations as to reasonableness (Clause 15). These issues are clearly inwrought and would vary on a case by case basis and are therefore likely to prove controversial or level problematicGuidelines should be drafted as to when and under what circumstances the employee has shown inability or unwillingness to attend a disciplinary meeting without good cause. different people should oversee the investigatory and later t he disciplinary process.In order to facilitate early resolution of disputes as well as implementing the Code the government also intends for ACAS to provide a helpline where simple disputes can be dealt with over the phone or by internet. This extends the existing right to moderation that parties must be notified of in any dispute. However the issue is ensuring that ACS has the necessary funds and staff to successfully fulfil this role. Staff must be well trained in providing employment advice and negotiating settlement between parties. another(prenominal) proposal is that the Employment Tribunal Application process should happen via the helpline prominent claimants access to advice on their claim and alternatives to litigation.Not all involved in the dispute resolution process favour these reforms. In the government report Resolving Disputes in the Workplace Consultation14 it statesOpponents of repeal included a number of Trade Unions, representatives of vulnerable workers and in dividuals. Many cited the benefits of having a standard required procedure in all workplaces which operated to the benefit of workers in all types of organisations and encouraged good practice.From the point of view of an employee, the fear is that the new regime and its emphasis on reasonableness leaves too much to the discretion of the employer. This coupled with the removal of the automatically unfair provision has left the issue of unfairness to the Employment Tribunal who will access the situation based on many factors other than breaches in the code including the size and resources of the employer. There is therefore an element of uncertainty in the new provisions certainly for the employee but for the employer as well. In the Legal Action conclaves response to the government consultation (June 2007) it states,15Repeal of the Employment Act 2002 (Dispute Resolution) Regulations 2004 (the regulations), will not improve the poor position of the many, low p promote, non-unionise d, workers in the labour market. The government should act to protect the most vulnerable by encouraging trade union organisation and by other legislative measures.The concern of the Group is that the governments emphasis on mediation could lead to vulnerable employees losing their right to a formal hearing to resolve disputes. In order for alternatives to litigation to be properly considered good quality advice needs to be available to all however only a third of the working population are trade union members. A lack of access to legal aid will mean that non members will not have proper hangout to legal advice. It seems unlikely that the ACAS helpline proposal will cater for all workplace disputes.The Code has also been seen as unfair towards employees as it does not take into account that in reality there is rarely a proportionateness of power between employer and employee. Employers have more resources and employees tend to already feel intimidated when bringing a grievance. A simple dispute could still have as its underlying cause a long term abusive policy against workers which of course cannot be resolved through a telephone conversation with an ACAS mediator. Indeed there are many categories of workers including the time-honored and disabled or those with language difficulties who would need face to face advice. The put away report states,16We have to question whether the DTI is taking an even-handed approach to the resolution of work-related disputes or whether it has bowed to pressure from the powerful employers lobby.The overall view therefore of those acting for employees is that although the Regulations were unnecessarily complex they could have been simplified without being repealed as they provided minimum protection for all workers, whether or not they were trade union members. The oral sex reason for issuing the Regulations was because it was found that many employers did not have any procedures in place for resolving dispute and a repeal of the regulations could mean a return to this situation. There are also potential problems with the right of employees to bring claims being infringed where it is proposed that the Tribunal application system should also be processed through the ACAS helpline. LAG notes17,It would be inappropriate for a service point that had an aim of providing advice and guidance to also act in a gatekeeping role for potential ET claims. Combined with the suggestion that the new advice service should be able to over-ride or contradict the advice given by a representative11, this would vituperate any integrity generated forsuch a service.ConclusionClearly the repeal of the Dispute Resolution Regulations 2004 and the implementation of the ACAS Code due to take effect in April 2009 is not without its difficulties. The Governments aim is to reduce the amount of claims being taken to the Tribunal although it recognises that dispute resolution is in itself only one strand. The other is revising the l aw in relation to unfair dismissal and making the Tribunal processes itself more efficient.The Code is similar to the Regulations in that it mirrors a three step process. However the onus is often put on the employer to determine what is reasonable which has the effect of the Tribunal later claiming breach of the regulations or the employee claiming that their rights have been infringed. The employer therefore has a burden to act reasonably and the vagueness of this term although creates more flexibility to employers will produce greater uncertainty. wholly time will tell whether the Code will in fact encourage a conflict resolution culture and reduce the administrative burden on employers as its drafters intended.BIBLIOGRAPHYACAS delineate for Consultation Draft Code of Practice on adjust and injury (Nov 2008) http//www.acas.org.uk/CHttpHandler.ashx?id=961p=0BERR -Resolving Disputes in the Workplace Consultation Government response (May 2008)DTI-Better Dispute Resolution A Rev iew of Employment Dispute Resolution in Great Britain- Michael Gibbons (March 2007)-http//www.berr.gov.uk/files/file38516.pdfDTI-Success at work resolving disputes in the workplace A consultation- (March 2007)DTI-Success at work resolving disputes in the workplace A consultation- answer of the Legal Action Group (2007)Is it the end of the road for Statutory Minimum Dispute resolution Procedures incision Hine May 2008)http//www.tcii.co.uk/images/upload/guest_article_pdfs/11ganick_hine2ddpdf_2173.pdfUnited Kingdom New Acas Code Of Practice on Disciplinary And Grievances Article by Val Dougan Dundas and Wilson Solicitors 28 November 2008www.personneltoday.com11 DTI-Better Dispute Resolution A Review of Employment Dispute Resolution in Great Britain- Michael Gibbons (March 2007)-http//www.berr.gov.uk/files/file38516.pdf2 DTI-Success at work resolving disputes in the workplace A consultation- March 20073 DTI-Better Dispute Resolution A Review of Employment Dispute Resolution in Great B ritain- Michael Gibbons )March 2007)http//www.berr.gov.uk/files/file38516.pdf4 Gibbons Review pg. 275 Employers must consult the ACAS book on redundancy handling6 ACAS Draft for Consultation Draft Code of Practice on Discipline and Grievance http//www.acas.org.uk/CHttpHandler.ashx?id=961p=07 The Foreword of the Code is not legally binding but constitutes best practice8 Clause 9, ACAS Draft Code of Practice on Discipline and Grievance 20089Clause 15, ACAS Draft Code of Practice on Discipline and Grievance 200810 Clause 24 ACAS Draft Code of Practice on Discipline and Grievance 200811 Clause 25 ACAS Draft Code of Practice on Discipline and Grievance 200812 Clause 32 ACAS Draft Code of Practice on Discipline and Grievance 200813 BERR -Resolving Disputes in the Workplace Consultation Government Response (May 2008)14 BERR Resolving Disputes in the Workplace Consultation Government Response May 200815 DTI-Success at work resolving disputes in the workplace A consultation- Response of the Legal Action Group16 LAG continue Pg.217 LAG Report pg.5