The onus is on the employer to avoid tribunals

It will soon be compulsory for companies to have their own internal procedures for solving disputes, says Janet Gaymer

Another piece of employment legislation with the not very original title of Employment Act will soon be with us. Its provisions are highly significant, in particular the introduction of minimum internal disciplinary and grievance procedures in the workplace.

These arise from the Governments belief that a large proportion of complaints to employment tribunals involve employers who have no internal disputes procedures.

The aim is to encourage parties to avoid litigation by resolving differences through the proper use of such procedures. Therefore, there are to be statutory dismissal and disciplinary procedures, and grievance procedures that both employer and employee have to comply with. These procedures will be an implied term of every contract of employment. There can be no contracting out of this implied term. Nor is the size of the employer a factor.

If the employee fails to follow the statutory procedure, this may result in a reduction of any compensation award from an employment tribunal by up to 50%.

The basic dismissal and disciplinary procedure will have three stages a statement from the employer of grounds for action and an invitation to meet; the meeting; and the appeal stage.

The grievance procedures also has three stages: first, a statement of grievance from the employee; then a meeting; and finally an appeal stage.

Where the employer already has a procedure in place, it may still be followed provided that it is additional to and not inconsistent with the requirements of the statutory procedure.

Each step and action under the statutory process must be taken without unreasonable delay. The timing and location of meetings must be reasonable and meetings must be conducted in a manner which enables both employer and employee to explain their cases. In the case of appeal meetings the employer must so far as reasonably practicable be represented by a more senior manager than attended the first meeting, unless the most senior manager attended that meeting.

The statutory right to be accompanied by a trade union official or a fellow worker will apply to meetings that deal with grievances affecting statutory or contractual rights.

The Act does give the Government power to exclude certain matters from the statutory procedures. Future regulations may therefore make exceptions for cases such as bullying, violence and sexual harassment, where following the procedure would mean an individual coming face to face with the person who is alleged to have assaulted or bullied them.

Another provision bars certain claims to a tribunal where an employee has not written a letter setting out his or her grievance or where 28 days has not passed since the writing of such a letter. The intention is to ensure that employers have time to deal with any grievance before the employee can pursue a claim.

Problems may arise if the employee has written such a letter but the 28-day period falls after the three-month limitation period which an employee has to bring a claim before an employment tribunal. (This will be three months from the date of the act complained of the dismissal or act of discrimination, for example).

In these circumstances the Government has made it clear that it does not want to deny an employee access to tribunals. The employee would be given another chance to submit a valid application by extending the period for making a tribunal application.

Many employers already have disciplinary and grievance procedures in place. However, the change which the Act introduces is the obligation to have such procedures and that they are contractually binding. ACAS will be producing a revised Code of Practice on the subject.

In any event, the first step for HR professionals will be to examine what procedures are currently in place and how they square up to the new approach to resolving disputes.

Janet Gaymer is senior partner at Simmons & Simmons