Satellite litigation

Satellite litigationBy common consent, the 2004 statutory dispute resolution procedures were not a success, and produced an avalanche of satellite litigation. They have been variously described as ‘inappropriately inflexible and prescriptive’ (Gibbons Report), ‘the middle of a manky meat sandwich’ (Hansard) and ‘rebarbative’ (Underhill J).

From April 2009 they will be replaced by a shorter, more principles-based system. There will be a new version of the Acas code of practice on disciplinary and grievance procedures. Tribunals will retain a discretion to penalise unreasonable non-compliance by adjusting compensation by up to 25 per cent (previously 50 per cent).

Acas has now produced its draft revised code, together with a draft non-statutory guide on handling workplace disciplinary and grievance issues. But do these two documents herald the arrival of a better system?

In its response to consultation on the Government’s proposals, the Employment Lawyers’ Association welcomes the removal of automatic unfairness for every technical slip-up in following the statutory dismissal procedure and the lifting of the bar on claims for employees failing to issue a step 1 grievance letter. But don’t throw your hats in the air just yet.

The draft code can be seen as either a souped-up version of the current procedures or an emasculated version of the 2004 Acas code to which tribunals must currently refer when considering unfairness. The rump of the 2004 code is in the guide, yet the guide is intended to have no formal status. If tribunals ignore it, as they would be entitled to, standards of fairness could be eroded. If they don’t, parties may feel ambushed.

The code states that it is designed to help employers, employees and their representatives yet the vast majority of obligations are imposed on the employer. Employees could be required to attend hearings, raise grievances in a timely fashion and invoke the appeal process where unhappy with the outcome.

In some areas, the code even seems to extend the law in favour of employees, in effect giving them a right to be accompanied at investigatory as well as formal meetings. It also gives employees a right to appeal against initial disciplinary warnings.

The scope of the code is uncertain: it doesn’t say what constitutes disciplinary matters nor whether the grievance procedure apples post-termination (eg to constructive dismissals). It doesn’t address interrelated disciplinary and grievance issues or no-fault dismissals (eg redundancies).

If the compensation uplift is needed at all, it should be confined to breach of core procedural steps and not lofty principles lacking specifics. Broad-brush statements such as the comment that employers and employees ‘should do all that they can’ to resolve issues internally are particularly concerning. Does this require employers to go beyond their statutory obligations and their own rules, and even go beyond what is reasonable? And, in turn, are employees required to turn a blind eye to procedural defects and minor unfair practices as they go the extra mile to find resolution?

Moreover, the code contains a rather unsatisfactory mixture of suggestions and requirements. Good practice suggestions should be removed to the guide.

The code is also inconsistent with the guide. For example, it states that rules and procedures “should… be agreed wherever applicable with trade unions or employee representatives”. The guide merely suggests that rules and procedures be developed ‘in consultation’ with employees. Which is correct? It matters because non-compliance could be deemed unreasonable and penalised, even where a set of perfectly good but un-agreed rules and procedures have been observed.

There is similar confusion in the documents over whether a formal grievance needs to be in writing. ELA suggest that employees should be required to clearly identify in writing when they are making a formal grievance, if only to enable employers to have confidence to try and resolve grievances informally first.

ELA has expressed many other concerns in its consultation submission (available to ELA members at elaweb.org.uk), yet remains hopeful that these will be ironed out in the final version. If its scope can be clarified and its language made more consistent, both with itself and the guide, there may yet be cause for rejoicing. But without these changes, there is unlikely to be any significant decrease in litigation which, after all, is the chief ambition of this exercise.

Anna Henderson is a member of the Employment Lawyers Association