New Grievance Procedures

Dated:

On 6 April 2009 the unpopular three-step statutory disciplinary, dismissal and grievance procedures were repealed by the Employment Act 2008 and replaced by the ACAS Code of Practice. However, the statutory procedures will continue to apply in certain circumstances until 4 July 2009 (or 4 October 2009 if, for example like equal pay claims or claims for a statutory redundancy payment, the claim has a six month time limit) so it is important to understand both procedures.

When does the Code of Practice apply?


The Code of Practice (“CoP”) applies to all disciplinary matters and grievances which relate to an employee’s legal rights. However, the CoP does not apply to:

  • Redundancy situations (which are covered by a separate CoP)
  • The non-renewal of fixed term contracts
  • Grievances raised by a representative of a recognised trade union (or other appropriate workplace representative) on behalf of two or more employees (these should be handled in accordance with the organisation’s collective grievance process)

The CoP only applies to grievances/ disciplinary matters raised on or after 6 April 2009. Grievances/ disciplinary matters raised before 6 April will be dealt with by the old statutory procedures. This means that there will be a transition period where the old statutory procedures will continue to apply. For example if an employee raised a grievance about equal pay on 5 April (which is therefore subject to a six month time limit) then she can issue an equal pay claim in an employment tribunal under the old statutory rules until 4 October 2009. After 4 October all claims will be heard under the new CoP regime.

ACAS’ Code of Practice


The Code of Practice provides that:

  • Rules and procedures should be set down in writing, be specific and clear. Employees and their representatives should be involved in the development of the rules and procedures
  • Employers must act promptly, consistently and carry out investigations – informing the employee of the problem and allow them to put their side across
  • Employees must be informed in writing if there is a case to answer and also advised of their right to be accompanied

 Statutory 3 step procedures applies:The CoP applies where:
  • If the employer has dismissed, sent an employee a ‘step 1’ letter or held a meeting informing an employee that it is contemplating taking disciplinary action or dismissal before 6 April 2009
  • If an employee complains about a single act (as opposed to a continuing act) which occurred before 6 April or a continuing act which finished before 6 April
  • If the employee complains of a continuing act which began before 6 April and has raised a grievance or submitted an ET 1 before 4 October 2009 for redundancy and equal pay claims or before 4 July 2009 for all other claims
  • The employer dismisses someone or takes action short of dismissal after 6 April 2009
  • The employee raises a grievance about a single act which occurred after 6 April
  • The employee raises a grievance about a continuing act which began before 6 April and does not raise a grievance or present an ET1 before 4 October 2009 for a redundancy or equal pay claims or before 4 July 2009 for all other claims
Application of procedure Automatically applies to all dismissals, disciplinary action and grievances regardless of the size of the employer Does not apply to employment ending because of redundancy or the non-renewal of a fixed term contract
The procedure Dismissal: (1) explain in writing basis of their complaint (2) invite employee to a meeting to respond (3) inform employee of decision and right to appeal

Grievances: (1) explain in writing basis of their complaint (2) attend meeting (3) decide on action and allow employee to appeal in writing
Dismissal: Investigate without unreasonable delay; inform employee of problem in writing & notify the employee of meeting; hold meeting; decide on action and allow an appeal

Grievances: Employee to explain in writing basis of their complaint; attend meeting; employer to decide on action and allow employee to appeal in writing
Following the procedure The employee/employer will be penalised unless they complete the three stage procedure The steps taken will depend on the circumstances and the size and resources of the employer
Right to be accompanied Employee does not have to be informed of right to be accompanied Statutory right to be accompanied by fellow employee, trade union official or trade union certified representative at the meeting but not at the investigatory meeting unless agreements permit. Failure to inform of statutory right may result in an uplift
Penalty for failure to follow Employer fails to follow: automatic unfair dismissal for employee and between 10 – 50% uplift in award

Employee fails to follow: award can be reduced by between 10 – 50%
Employer unreasonably fails to follow: uplift on award of up to 25% for employee

Employee unreasonably fails to follow: reduction of award by up to 25%
Issuing a claim Raise a grievance if relevant & wait 28 days before submitting a claim

Time limit can be extended by up to 3 months

Use old ET1
Not mandatory to raise a grievance but possible reduction in award if employee does not do so

No extension of time limit to comply with procedure

Use new ET1




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