INSTITUTE OF EMPLOYMENT RIGHTS
Pre – 2004
Good practice for employers to provide clear disciplinary and grievance
ACAS Codes of Practice
Implied term – the right to a response to a grievance raised in good
faith – W.A. Goold (Pearmak) Ltd –v- McConnell 
S10 Employment Relation Act 1999- the right to be accompanied.
1. STATUTORY DISPUTE RESOLUTION
Introduced by Ss29 and 31-44 (and Schedules 2-4) of the Employment Act
2002 (“EA2002”) and the Employment Act 2002 (Dispute Resolution)
Regulations 2004, S1 2004/752 (“EADR”).
From 1st October 2004
Early resolution of employment disputes through the establishment and
use of internal procedures
Reduced workload for Employment Tribunals.
Reduced cost to employers.
a. Key Features
i. Standard DDP
ii. 3 step approach
iii. DDPs applied to most dismissals (including non-renewal of a full term
GPs applied to most other employment claims including discrimination
– see the jurisdictions listed in EA2002 Schedule 4.
iv. Time limits – extension to the standard 3 month time limit.
Reg 15(1)(a) EADR – time limit extended in dismissal cases where at
the end of the primary 3 month limitation period, the employee has
reasonable grounds to believe that a dismissal or disciplinary procedure
was still being followed.
Reg 15(1)(b) EADR- time limit was extended in Schedule 4 cases
where the employee had sent a written grievance to the employer
within 3 months whether or not the grievance procedure was still being
followed at the end of the primary limitation period.
v. Default: Failure by the employer to follow or complete the applicable
DDP rendered the dismissal automatically unfair – S98A(1) ERA 1996
Increased by a mandatory 10% in the absence of exceptional
circumstances, with a discretion to increase to 50% - S31(3) EA 2002.
Reduced in a similar manner where the employee had defaulted.
S32 EA 2002 – An employee had to issue a Step 1 grievance letter,
then wait 28 clear days, before presenting the claim to an Employment
viii. Applied to employees but not workers.
i. The requirements of Steps 1 and 2 of the standard DDP.
ii. The precise relationship between GPs and DDPs.
iii. What was and was not a grievance?
iv. Extensions of time
v. Compensation provisions
Gibbons Report March 2007 recommended:-
Abolition of statutory procedures.
Less presriptive measures to promote internal alternative dispute
Employment Bill 2007 – Royal Assent 13th November 2008.
Employment Act 2008 (Commencement No 1 and Transitional
Provisions) Order 2008 Sl 2008/3232 (“The 2008 Order”)
New ACAS Code of Practice 6th April 2009.
3. TRANSITITION ARRANGEMENTS
Where a trigger event occurred before 6th April 2009, the old regime applied.
Where it was on or after 6th April 2009, the new regime applies:-
a) If the date of the action, or failure to act, complained of occurred
wholly before 6th April 2009, the old regime applied.
b) The old regime also applied to a case where the action complained of
began before 6th April 2009 and continued after that date where the
employee submitted a written grievance or commenced Employment
Tribunal proceedings on or before 4th May 2009 in most cases, on or
before 4th October 2009 in cases with a 6 month time limit (eg equal
pay, redundancy, dismissal in connection with industrial action).
a) Where the Step 1 letter was sent or Step 2 meeting took place before
6th April 2009, the old regime applied.
b) If no Step 1 letter or Step 2 meeting then the trigger date is the date
of the disciplinary action or dismissal.
4. NEW PROCEDURES
Part 1 Employment Act 2008
Repeals statutory procedures
ACAS Guide on Disciplinary and Grievances at Work.
Introduces new S207A TULR(C)A 1992.
Schedule A2 – lists the statutory provisions to which S.207A applies.
i. Not mandatory
ii. Not prescriptive
iii. Applies to employees only
iv. Similar to the Step 3 procedure
v. No modified procedures
vi. Does not appear to cover non-disciplinary dismissals e.g. for
redundancy or ill health.
vii. Suggests that an employee be accompanied at a formal investigatory
meeting – ACAS COP Para 7.
viii. Contemplates suspension of the disciplinary procedure where certain
types of grievance are raised – ACAS COP Para 44.
ix. suggests that a disciplinary penalty should never be increased on
x. Advises that where disciplinary action against a lay union
representative is being considered, the employer should discuss the
issue with a union official at an early stage – ACAS COP Para 29.
xi. Allows Employment Tribunals to increase compensation by up to 25%
where any employer has unreasonably failed to comply with all stages
of the ACAS COP
But an employer’s unreasonable failure to follow the ACAS COP does
not render a dismissal automatically unfair or entitles an employee to
judgment in a grievance based claim. Ss98A(1) and (2) are repealed.
The decision in Polkey –v- A.E. Dayton Services Limited  is
xiii. The ACAS COP proposes more leeway for small businesses – ACAS COP
xiv. No extension of the basic 3 month time limit.
5. THE FUTURE
i. A statutory duty requiring all employers to observe basic disciplinary
and grievance procedures.
ii. Application of disciplinary or grievance procedures to all Employment
iii. Extension of these procedures to workers.
iv. Breach of the relevant procedure to render a dismissal automatically
unfair, and to result in judgment for the Claimant in a grievance based
v. A revised ACAS COP to support and explain the operation of the
disciplinary and grievance procedures. An enhanced role for ACAS to
promote resolution of employment disputes before commencement of
vi. An increase in time limits for all Employment Tribunal claims to 6
vii. A statutory right to be accompanied to all disciplinary and grievance
hearings whether informal or investigatory.
viii. An automatic increase or reduction of compensation by 10% where one
party fails to comply with the relevant procedure – subject to a defence
of exceptional circumstances. Discretion for the Employment Tribunal
to raise the increase/decrease to a maximum of 50%.