The Employment Act 2002 and the Dispute Resolution Regulations 2004: A Summary
On 1 October 2004, the Employment Act 2002 (Dispute Resolution) Regulations 2004 came into effect.
One of the most important changes introduced by the regulations is that all employers, irrespective of the size of the business, must have a written grievance and disciplinary procedure in place that is included in their terms and conditions of employment.
Disciplinary procedure
Were an employer not to observe or fulfil the terms of their disciplinary procedure, then the dismissal of an employee - or at least an employee who has a minimum of one year’s continuous employment - will be regarded as unfair and may be treated as such by a tribunal.
To make sure that an employee has been treated fairly, a business should follow the disciplinary steps recommended by ACAS, the Advisory, Conciliation and Arbitration Service. An employee should first be given a verbal warning as to their conduct; then a written warning; then a final written warning; and only then should they be dismissed.
Under the terms of the Act, however, each of these steps must itself follow a three-stage statutory procedure.
Summarised, these are: the disciplinary issue must be set down in writing; a meeting must be held between the parties to discuss the issue; an appeal meeting must be held if the employee does not accept the decision made at the meeting.
When instigating a disciplinary procedure, the employer must write to the employee concerned. The letter must include a summary of the complaint or allegation made about or against the employee and should have any back-up documents or witness statements attached. The letter must also invite the employee to a meeting at which the complaint or allegation will be discussed. The employee should be given a minimum of three days’ notice of the meeting and should also be given the chance to have another employee or a trades union representative attend the meeting with them. If there is a problem agreeing to the date and venue, the employer needs to do everything reasonable to re-schedule the meeting.
The background to the complaint must be properly investigated and examined by the employer before the meeting. In the interests of fairness, the meeting should be conducted by someone other than the person who carried out the investigation. Once the agenda for the meeting has been set out, the employee should be allowed to offer their explanation of events. The meeting should then be adjourned while the employer reviews the evidence. Recalling the meeting, the employer can then inform the employee of their decision.
That decision must be confirmed in a letter. This must be done even if the warning issued as a result of the meeting is only a verbal warning.
As well as informing the employee of the decision, the letter should say what the employee must do to avoid any future charges of misconduct or how they must improve their efforts. If it is a matter of improving their performance, the employee should always be given sufficient time in which to comply with the letter’s requirements.
The letter must also give the employee the chance to appeal against the decision reached at the meeting. Should an employee lodge an appeal, the employer must agree a date for the appeal as soon as possible. The appeal ought to be heard by someone who did not attend the initial meeting.
The appeal meeting needs to follow the same procedure as the initial meeting. The employee should be told of the appeal decision at the end of the meeting. The decision, and the reasons for it, must likewise be confirmed in writing.
In those cases where the employee fails to improve their performance or persists in the misconduct, then the employer must move to the next stage of the disciplinary procedure.
Grievance procedure
The grievance procedure is the means by which employees raise a complaint. Essentially, it follows the same pattern as the disciplinary procedure.
The employee concerned must put their grievance or complaint in writing. A meeting must be arranged, before which the employer must investigate the background to the complaint. At the meeting, the employee, who can be accompanied by another employee or a trades union representative, should re-state their grievance. As well as informing the employee of their decision at the end of the meeting, the employer must write a letter confirming that decision.
The employee has a right to appeal against the decision. The appeal process mirrors that of the disciplinary procedure.
Where the cause of the complaint or grievance is another employee, and the employer upholds the grievance, then the employer must take steps to resolve the problem even if this means beginning disciplinary procedures.
Observing the procedures
It is essential that employers follow their disciplinary and grievance procedures. Otherwise a tribunal may find against them.