Employment Act 2008 - Transition Arrangements
We know that the Employment Act 2008 provides for the abolition of the statutory three step dismissal and grievance procedures from 6th April 2009 but that is not quite the whole truth. Here is a summary of the transition arrangements.
Disciplinary: The government has decided to make the trigger event for deciding whether it is the statutory disciplinary process (pre 6th April law) or the new Acas Code (post 6th April law) which applies, one of the following.
If, before 6th April you do any of the following then the statutory 3-step process applies.
1. Send the employee a Step 1 letter setting out the reason why you are contemplating taking disciplinary action or dismissing him or her;
2. Hold a Step 2 meeting to discuss the problem (such as a disciplinary hearing or a meeting to consider whether to terminate employment on the grounds of long term ill health absence or redundancy where fewer than 20 employees are being dismissed).
3. Dismiss the employee whether with or without notice.
If, in any of these circumstances, you fail to use the 3-step process it will be automatically unfair and the Tribunal may increase the compensation award by between 10 and 50%. If you have done none of these things before 6th April 2009 then the new process will apply. Investigations do not count.
Example 1: On 1 April the organisation suspends John on full pay pending an investigation into alleged misconduct. After reviewing the investigation the organisation sends John a letter on 4th April inviting him to attend a disciplinary hearing on 10th April, the outcome of which might be dismissal. The statutory 3-step process applies because before 6th April the organisation sent John a letter setting out the reason it is contemplating dismissing him.
Example 2: On 1st April the organisation suspends Susan on full pay pending an investigation into alleged misconduct. After reviewing the investigation the organisation sends Susan a letter on 7th April inviting her to attend a disciplinary hearing on 10th April, the outcome of which might be dismissal. The statutory 3-step process does not apply because the organisation did not send Susan a letter until after 6th April.
Grievance: In relation to grievances, the transitional arrangements for the introduction of the new rules are different depending on whether the matter the employee is complaining about occurred wholly before the 6th April 2009 or whether it started before then but continued on 6th April or after it. If the trigger event occurred wholly before 6th April the employer must continue to deal with the grievance under the old statutory 3-step process.
Example 3: On 10th April David complains that he failed to get promotion on 28th March because he is disabled. Because the event happened before the 6th April you must deal with this grievance under the old 3-step process. There will be a natural cut off because employee must make their complaint to an Employment Tribunal within the 3 month time limit (6 months for redundancy).
The transition rules are different where the action the employee is complaining about begins before 6th April and continues after that date. In these cases you must still follow the old 3-step process if the employee makes a complaint before 4th July 2009.
Example 4: On 28th June 2009 Mark complains that he has been subjected to homophobic taunts over the preceding six months. Because the events started before 6th April you must deal with this grievance under the old 3-step process.
There is an exception to this rule and that is in the case of grievances about equal pay or redundancy pay. If the grievance is about either of these, then the cut off point is 4th October 2009.
Example 5: Mary makes a complaint about equal pay on 3rd October 2009. Assuming she was employed before 6th April, then you must deal with the complaint under the old 3-step process. Of course, if you did not employ Mary until after the 6th April then her claim cannot predate 6th April in which case you should take legal advice since the published transition arrangements do not cover this eventuality.
Wages & Redundancy Claims to Employment Tribunal
If you would like a Word version of this article or just like to chat to us please contact us.
