The Employment Act 2002 is a wide-ranging package of reforms covering dispute resolution in the workplace, improvement to employment tribunal procedures, provisions to implement the fixed term work directive as well as other work related procedural changes.

In this article we will be looking at the new provisions relating to dismissal and disciplinary procedures.

THE IMPLIED CONTRACTUAL TERM

The Act implies a contractual term into all contracts of employment that will state the minimum statutory standards for formal disciplinary procedures. If the employer or employee fails to follow the set procedures, it will result in breach of contract. Arguments will arise that if the employer had followed the Disciplinary Procedures the employee would have remained in employment more than the 1-year qualifying period.

THE PENALTIES

If these statutory procedures are not followed, the Employment Tribunals must raise the compensatory award if it is as a result of failure by the employer or lower the award following failure by the employee. Awards can be increased or decreased by as much as 50%. In order to encourage statutory procedures to be adhered to, regulations will be made allowing the extension of time limits for bringing a claim to tribunal.

THE STATUTORY PROCEDURES

The Employment Act sets out two different disciplinary procedures, a standard procedure and a shorter modified procedure. These are set out below.

Modified Dismissal and Disciplinary Procedure Stage 1 The employer must set out in writing the employees alleged conduct, characteristic or other circumstance that lead to the dismissal or taking disciplinary action against the employee. The employee must then be informed of their right to appeal. Stage 2 If the employee wishes they can appeal. There will be an appeal meeting following which the employer must inform the employee of its final decision. This modified procedure will be appropriate for cases of gross misconduct

Standard Dismissal and Disciplinary Procedure Stage 1 The employer must set out in writing the employees alleged conduct, characteristic or other circumstance that lead to the dismissal or taking disciplinary action against the employee. The employer must send the statement to the employee and invite them to attend a meeting. The employee must take all reasonable steps to attend. Stage 2 The employee must be given the opportunity to consider their response before the meeting. The meeting must be held before any further action is taken. After the meeting the employer must inform the employee of its decision and their rights to appeal against it. Stage 3 If the employee wishes they can appeal. There will then be an appeal meeting following which the employer must inform the employee of its final decision

AUTOMATIC UNFAIR DISMISSAL

If an employee is dismissed and the employer has not followed the appropriate disciplinary procedure and the employer is at fault, the employee will be treated as having been unfairly dismissed.

A tribunal can award additional compensation of between 2 weeks pay to 4 weeks pay, where the dismissal is deemed to be unfair due to the employer’s failure to follow statutory procedures. Compensation will be reduced where the non-completion of procedures is due to failure by the employee.

WHAT TO LOOK OUT FOR

Always follow the format of the disciplinary procedures

Be at great pains to strictly follow the procedures to avoid a breach of contract claim.

Ensure that you keep a full and accurate written account of any disciplinary action taken.

Look out for the Regulations that are due to be published later on this year.