Dispute Resolution Regulations .... two years on

The Dispute Resolution Regulations introduced in October 2004 set out to establish a simple and fair process for dealing with disciplinary, dismissal and grievance procedures.

Statutory Disciplinary and Dismissal Procedure

Step 1 - Employers must set out in writing the reasons why dismissal or disciplinary actions against the employee are being considered.
A copy of this must be sent to the employee who must be invited to attend a meeting to discuss the matter, with the right to be accompanied by a colleague or union representative.
Step 2 - A meeting must take place.
Step 3 - An appeal procedure must be established.

Statutory Grievance Procedure

Step 1 - The employee must set out their grievance in writing and send this to their employer.
Step 2 - The employer must invite the employee to a meeting to discuss the grievance.
Step 3 - An appeal procedure must be established.

Two years have passed since the introduction of these regulations and a number of common mistakes have tripped up employers.

Not applying the procedures to employees with under one year’s service. Whilst such employees are often unable to claim unfair dismissal they may be able to bring another claim, such as discrimination, which, if successful, could result in compensation being increased by 50% through these regulations.
Failing to invite employees to disciplinary hearings in writing or supply adequate evidence before the disciplinary hearing. The standard procedure requires that the employer clearly sets out the ‘basis of the allegations’ prior to the hearing.
Not holding a meeting or including a right of appeal.
Failing to treat any written statement/letter which raises issues which could form the basis of a tribunal claim as a grievance. A plethora of recent case law has highlighted that employers must take seriously any written communication from employees that suggests they are not happy with their circumstances even if no mention of the word ‘grievance’ is made.

It is not necessary to make it clear that the complaint is a grievance, an invocation of the grievance procedure, nor any intention to pursue it as a grievance with the employer.

The statutory grievance procedures are satisfied if the employee simply sets out his or her complaint in writing and this can be a simple letter of resignation or even a solicitor’s letter written on the employee’s behalf.
Pursuing a disciplinary hearing during sickness absence. In this respect, the case of William Hicks and Partners v Nadal 2005 provides a cautionary tale.

Called to a disciplinary meeting for alleged bullying of her secretary, Ms Nadal’s doctor forwarded a letter saying she would not be able to attend for the foreseeable future due to stress. Later she proposed a date she felt she would be able to attend but subsequently her doctor indicated that the cause of stress was the disciplinary action itself and she would only be fit to return when it had come to an end.

The partnership went ahead and held the disciplinary hearing in her absence as they did not believe she was unfit to attend having been informed that she had already found another job. As a result of the disciplinary hearing Ms Nadal was dismissed. She took her case to tribunal and won on the basis that the partners failed to give her the opportunity to defend herself and they had no tangible evidence to prove she was misleading the firm.

The statutory procedures state that if an employer invites the employee to attend two disciplinary hearings and on each occasion the employee is unable to attend due to unforeseen reasons the employer may treat the statutory procedure as complete. This case shows that great care is needed when disciplining absent employees and each case should be looked at individually. Here are some useful guidelines:
- if an employee goes off sick after the disciplinary hearing has been arranged the absence may be considered as unforeseeable. The employer should arrange another meeting
- if the employee remains off sick the absence is no longer unforeseeable and if the second meeting is cancelled the procedure should not be regarded as complete
- if the employee is signed off for a few weeks it may be difficult to justify holding the disciplinary hearing in the employee’s absence
- however, if the employee is signed off indefinitely, it may be more reasonable to continue with the procedures and hold the disciplinary hearing in the employee’s absence. In such circumstances it may be appropriate to hold the hearing at the employee’s home or a location other than the employer’s offices in order to reduce stress
- if the situation was less serious, for example, it didn’t warrant dismissal, the employee could be offered the opportunity to put forward their comments in writing and/or to send a representative to put forward their argument.