Statutory discipline and grievance procedures

24 August 2010



Although the statutory dispute resolution procedures were repealed in 2009, there are still some cases ongoing that were brought before the legislation was scrapped.

In Lawless v Print Plus, Mr Lawless was dismissed for redundancy without prior notice or consultation. He appealed against the decision of the Employment Tribunal (ET) to impose no more than the mandatory 10 per cent uplift in the compensation awarded when there had been a complete failure on the part of his employer to comply with the statutory procedures.

The Employment Appeal Tribunal upheld his claim. In deciding what is just and equitable in the circumstances, the ET should consider:

• whether the procedures were ignored altogether or applied to some extent;

• whether the failure to comply with the procedures was deliberate or inadvertent; and

• whether there are circumstances that may mitigate the blameworthiness of the failure.

In addition, the size and resources of the employer are capable of being relevant where the ET finds that these factors aggravate or mitigate the culpability and/or seriousness of the failure.

When dealing with such cases, the ET must give reasons for awarding an uplift of more than 10 per cent, or its reasons for not doing so where the claimant has argued that it would be just and equitable to do so.

The statutory dispute resolution procedure rules that applied in the above case were replaced in April 2009 by a semi-voluntary Advisory Conciliation and Arbitration Service (ACAS) Code of Practice, which sets out the basic principles for ensuring fairness and transparency when handling disciplinary problems and grievances in the workplace. However, the Code does not apply to dismissals due to redundancy or to the non-renewal of fixed term contracts on their expiry.

Under the new rules, a dismissal is not automatically unfair if the employer fails to comply with the ACAS Code. However, the ET does have the discretion to increase or reduce an award by up to 25 per cent where either side has unreasonably failed to comply with its principles.

Contact Nicola Nicolaou, associate in our employment law team, for advice on any grievance, disciplinary or dismissal matter. Call 01753 279029, complete the online enquiry form or email employmentlaw@bpcollins.co.uk.