The Regulations bringing parts of the Employment Act 2008 into force on 6^th April 2009 also introduce transitional arrangements for the removal of the statutory dispute resolution procedures. These regulations provide for one set of arrangements for dismissal and disciplinary actions, and another for grievances. These changes will be important for all HR managers and line managers. In particular, the transitional arrangements relating to grievances may catch many employers out in the year ahead.

The Employment Act 2008 (Commencement No. 1, Transitional Provisions and Savings) Order 2008

Dismissal and disciplinary action – The current statutory procedures will continue to apply after 6^th April 2009 if the procedures were applicable to the case in question and where on or before 5^th April 2009:

• the employee has been dismissed, or
• the employer has taken “relevant disciplinary action” against the employee (note that this does not include written warnings or paid suspension) or
• the employer has either complied with step 1 of the standard or modified statutory dismissal procedure or has attended a meeting with the employee where the employee is informed that the employer is contemplating dismissal or taking disciplinary action.

In practice this rule will only be relevant if the dismissal is litigated – whether or not the statutory procedures apply should not affect how you deal with a dismissal since the new Acas Code contains the same three step procedure. We can foresee arguments about whether the statutory procedures apply in these circumstances (e.g. where an “at risk” redundancy meeting which would not normally be deemed to be a step 2 meeting takes place before 6^th April but no other steps are taken) so to avoid any uncertainty, the best course would be to follow the current statutory procedures anyway, or where practicable, delay any steps until after 6^th April. Note that although from 6^th April the statutory procedures will not apply, a dismissal where they are not followed will not be automatically unfair but may, of course, still be unfair for failure to follow a fair procedure; any award may be subject to the 25% adjustment if the Acas code has not been followed.

Grievances – Whether the statutory grievance procedure will continue to apply after 6^th April 2009 will depend on whether the action about which the employee complains occurs wholly before 6^th April or is ongoing after that date and, if ongoing, the date on which the employee raises his or her grievance or brings his or her claim in the Tribunal.

The statutory grievance procedure will continue to apply to any grievance where the action about which the employee complains takes place wholly on or before 5^th April 2009. Hence, where an employee resigns claiming constructive dismissal after this date, the statutory grievance procedure will still apply if the event or events which gave rise to the employee’s reason for resignation occurred wholly before this date. This will mean the employee is debarred from bringing the claim if he or she fails to raise a written grievance. It could also mean that where the employer fails to recognize that the statutory procedures still apply and fails to comply with them, the dismissal will be automatically unfair (and liable to the 50% uplift). 

If, however, the action about which the employee complains occurs on or before 5^th April 2009 but is ongoing after that date, the statutory procedures will only apply if the employee either brings his or her claim in the Tribunal or raises the relevant grievance:

• on or before 4^th July 2009 in relation to most claims (e.g. unfair dismissal or discrimination), or
• 4^th October 2009 if the claim is for redundancy, equal pay or is a dismissal in connection with industrial action.