Dispute Resolution
The statutory minimum dismissal, disciplinary (SDPs) and grievance procedures (SGPs), designed to encourage the resolution of disputes in the workplace, were found in reality to exacerbate and accelerate employment disputes. This eventually resulted in their repeal on 6 April 2009.

The Employment Act 2008
The SDPs and SGPs, together with all related provisions such as automatic unfairness, are now repealed subject to transitional provisions (see below).  Employers are now expected to follow the new ACAS Code of Practice on Discipline and Grievance.
The repeal means a return to reliance on Polkey v AE Dayton Services Ltd [1987] IRLR 503. So, generally, if an employer fails to comply with a procedure, the dismissal will be found to be unfair, even if the failure would not have affected the outcome. However, any compensation award can be reduced to reflect the likelihood that the dismissal would have gone ahead even if the correct procedure had been followed.

Award adjustment
In place of the statutory procedures, employers and employees alike are expected to comply with the Code. If either party unreasonably fails to follow the Code, employment tribunals may, if they consider it just and equitable, increase or reduce compensation by up to 25 percent. However there are some pre-requisites:

• the tribunal claim must fall within a specified list. By way of example, the list includes unfair dismissal, discrimination and breach of contract claims but excludes claims under the part-time and fixed-term workers regulations; and
• the claim must be one to which the Code applies (see later); and
• there must have been an unreasonable failure to comply with the Code.

The Code
The Code consists of three main sections:

The introduction

• states that disciplinary situations include misconduct and/or poor performance. This means that the Code does not apply to ill-health dismissals as a result of long-term sickness absence.
• states that the Code does not apply to dismissals due to redundancy or to the non-renewal of fixed-term contracts.
• sets out general principles which include requirements on both employers and employees to raise and deal with issues promptly and to act consistently; and
• states that “employees and, where appropriate, their representatives should be involved in the development of rules and procedures.”

Discipline
This section sets out the key stages of handling disciplinary problems in the workplace including:

• establish the facts;
• inform the employee;
• hold a meeting (employees should be given reasonable opportunity to call witnesses);
• allow the employee to be accompanied;
• decide on appropriate action; and
• appeal.

Grievances
This section sets out the key stages of handling grievances in the workplace including:

• let the employer know the nature of the grievance – the Code says a grievance “should” (but not “must”) be raised in writing;
• meeting;
• allow the employee to be accompanied;
• decide on appropriate action; and
• appeal.

The Code states that where an employee raises a grievance during a disciplinary process the employer may temporarily suspend the disciplinary process to deal with the grievance or, if related, it may be appropriate to deal with both concurrently. Overlapping grievance and disciplinary cases were notoriously difficult to manage under the statutory procedures. Whether the situation is now improved remains to be seen.
The New ACAS Guide

To support the Code, ACAS has also published Discipline and grievances at work: the Acas guide in which while employment tribunals are not required to take into account, it does contain extracts from the Code and offers practical advice and guidance on them.  

It is possible therefore that employment tribunals will consider the guide when interpreting the Code. By way of example the guide sets out additional requirements in respect of investigatory meetings (the employee must be warned in advance and given time to prepare) to those contained in the Code.

Transitional arrangements
The transitional provisions mean that, in certain circumstances, the old rules continue to apply.  

Dismissal and discipline
The old regime applies where a trigger event (a step 1 letter, a step 2 meeting or dismissal) occurs on or before 5 April 2009. The new regime will apply to any case where the trigger event takes place on or after 6 April 2009.  

In grievance cases, the old regime will continue to apply where the action complained about takes place entirely before 6 April 2009, or begins before 6 April and continues beyond that date provided the Step 1 letter or ET1 claim is submitted on or before 4 July 2009 (unless it relates to a claim with a six month time limit, for example equal pay or statutory redundancy pay, in which case the date is 4 October 2009).

It is conceivable that complaints being heard under the old regime may well continue into 2010.

Martin Warren is head of employment law at Eversheds LLP.