Grievance and discipline procedures

Most of the provisions governing discipline and grievances at work are historically found in:

• the Employment Act 2002
• the Employment Act 2002 (Dispute Resolution) Regulations 2004 (SI 2004/752)

Aspects of this legislation which cover the statutory dispute resolution procedures have been widely criticised and although the procedures had only been in force for under five years they were repealed in their entirety from 6 April 2009 under the Employment Act 2008.

Therefore from 6 April 2009 the important provisions governing discipline and grievances at work are to be found in:

• the Employment Act 2008, and

• the Employment Tribunals (Constitution and Rules of Procedure) (Amendment) Regulations 2008.

The new ACAS code of practice on disciplinary and grievance procedures is also of crucial importance.

Other points to note on the changes include the following:

• Employers and employees should do all that they can to resolve disciplinary and grievance issues themselves and should consider using a third party (for example a mediator or an arbitrator) to help resolve the problem, ending up in an employment tribunal as a very last resort.

• The rule laid down in the case of Polkey v. A. E. Daunton Services Ltd [1988] ICR 142, HL is being fully reinstated. This applies to cases where a dismissal may be technically unfair on procedural grounds, but if the correct procedures had been followed then the dismissal would have taken place anyway. In such cases the tribunal can reduce or eliminate the compensatory award to reflect the fact that the dismissal would have gone ahead anyway. (Between October 2004 and 6 April 2009 dismissals were automatically unfair if an employer has not completed the statutory procedures and the employer's failure to comply with other procedures would not be taken into account if the employment tribunal was satisfied that following them would have had no effect on the employer's decision to dismiss).

For matters arising before 6 April 2009 employers should have followed the statutory procedures in their previous form; after that date they should follow the new ACAS code (and if appropriate, their own discipline and grievance procedures).

Numerous other pieces of legislation cross refer to discipline and grievance issues. Some important examples include the:

• Employment Rights Act 1996 as amended

• Employment Rights Dispute Resolution Act 1998

• Employment Relations Act 1999

• Employment Rights Act 2004.

The Employment Act 2008 is not applicable to Northern Ireland.

The following pages give some detail on these procedures and how and when they should be used together with a note as to the potential problems that can and do arise.