The Code is intended to come into force in April 2009 at the same time as the abolition of the hated statutory Dispute Resolution procedures, and is currently open for consultation. Acas have taken the tack of having two documents - a Code of Practice, and a document containing wider guidance. The consultation document notes that many have called for a shorter, simpler code, and this indeed is what they’ve delivered. By way of reminder, failure to follow the Code of Practice will not in itself be determinative of a legal issue such as fairness, as is the current case with the statutory procedures. Instead, it will be a factor to which the tribunal can have regard, and non-compliance will also empower the tribunal to adjust any compensation by up to 25%.
This seems sensible - it means the code of practice rewards compliance and punishes non-compliance, but isn’t so absolute in its effect such as to result in injustice.
I’m pretty stunned by the simplicity of the document, which can be found here. Those used to Acas guidance will have been checking the amount of paper in the printer, but no need here. The full document, including the consultation what nots, is a mere 14 pages. The steps that should be followed are fairly uncontroversial, but have a look for yourself. One paragraph that did catch my eye was this:
23. Some acts, termed gross misconduct, are so serious that they may call for summary dismissal for a first offence.
What this, with its surrounding paragraphs, says is that dismissal on the first offence can only be for gross misconduct. Whilst that will be the case 95% of the time, I’m not sure that as a statement it’s correct in law.
The National Staff Dismissal Register will be a searchable database of employees who have been dismissed for ‘dishonesty’ or have resigned while dismissal proceedings are ongoing - see the article on Personnel Today. I’m amazed this hasn’t generated more headlines. It’s been developed in consultation with the Information Commissioner’s Office, so one assumes the data protection angle will be looked after, and I’d guess there will be a dispute resolution service to remove disputed details. I’ve not seen complete details of the scheme, but some immediate issues that spring to mind:
- If use of the database is widespread, finding another job after dismissal will be near impossible; this could seriously affect an unfairly dismissed employee’s chance of mitigating his loss pending the unfair dismissal finding (at which one assumes the dismissal will be removed from the system). This will mean higher compensatory awards, and potentially arguments over damage to reputation and so on.
- What if I’m being investigated for an allegation that constitutes dishonesty, but I resign for other reasons? What if I’ve been constructively dismissed? What if the allegations of dishonesty were victimisation following a discrimination claim? The disputes reaching the database operators could well trespass into findings best left for a tribunal - and if the procedures don’t exist then serious injustice could result.
- Will there be any compulsion for those employers signed up to the system to report their employees? A lot of investigations and disciplinary procedures end with a resignation, a cessation of the procedure, and the employer simply refusing to respond to subsequent reference requests. An employee in that situation still has reasonable chances of employment, but if his former employer is obliged to put him on the database then his chances are shot.
I can well understand why there are concerns. A TUC representative stated to the BBC:
“The TUC is seriously concerned that this register can only lead to people being shut out from the job market by an employer who falsely accuses them of misconduct or sacks them because they bear them a grudge. Individuals would be treated as criminals, even though the police have never been contacted.
“The Criminal Records Bureau was set up to assist employers to make safe appointments when recruiting staff to work with vulnerable groups. The CRB already provides appropriate and properly regulated protection for employers. Under the new register, an employee may not be aware they have been blacklisted or have any right to appeal.”
…and at the moment those very genuine concerns aren’t answered.
Employment tribunal chairmen are now renamed Employment Judges - a change which highlights the change in philosophy and attitude in the Tribunal, which seems to completely contrast with the changes occuring in the ‘normal’ courts system.
The tribunal is supposed to be informal, its procedures pragmatic, and its language accessible. So much so, in fact, that in normal circumstances you can’t get legal aid for an ET hearing no matter what your means. Yet look at the developments:
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They’re now chaired by Judges;
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In 2004 the existing 21 Tribunal Rules exploded to 61;
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We have CMDs, PHRs, strike-outs, pre-acceptance procedures;
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More costs orders against unreasonable litigants;
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The utterly ridiculous ET1 forms:
Comment has been made in the past on the wording of the standard form ET1, which the Government insists all litigants must now complete in order to bring a claim before the Employment Tribunal. …those who design these forms may care to undertake basic instruction in employment law. - HHJ Peter Clark, Ellis v Ministry of Defence UKEAT/0034/07
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…not to mention the impossibility in the first year or two of submitting the blasted things without having to resort to filling them in by hand;
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And let us not forget the convoluted and spectacular failure of the Dispute Resolution regulations, taking grievances - which had on occasion solved the problem - and transforming them into a legalistic over-technical minefield, together with obliterating the chance of anyone approaching them constructively.
So would we say the Tribunals are becoming more cuddly? Or less cuddly? A cynical view is that this sort of system leads to less hearings at the Tribunal, and thus less money spent, as one side or the other wins or loses on a technicality long before the Tribunal ever gets a chance to fully assess the merits of the case - or simply can’t face the attrition of yet another meeting. An even more cynical view is that the slow walk to enforced Acas-controlled or accredited mediation has even more risk attached of bumping up the legal bills.
Don’t expect anyone to shed a tear over the abolition of the dispute resolution procedures - the prescriptive procedures that require an employer and employee to run down a check-list of frustrating steps before they can thrash it out in the tribunal like they both want.
The new provisions in a nutshell are:
- The dispute resolution procedures are abolished;
- They’re replaced by a discretion available to tribunals to alter compensation by up to 25% where a relevant Code of Practice hasn’t been followed.
These changes will be implemented sometime in 2009 - although if it were up to me it’d be next year.
Acas have blamed lawyers for the failure of the procedures - but this is nonsense. The procedures did increase the use of lawyers, but this was the fault of their inflexibility. A case I dealt with recently had an employee physically attack another in a canteen. The employer suspended the pair of them, interviewed them and the dozen-odd witnesses, and concluded that one employee (who had a reputation and indeed a criminal record for unprovoked violence) was solely to blame. He held a disciplinary hearing and dismissed for gross misconduct. Applying any standard of common sense, this was a fair dismissal. But the failure to reduce the disciplinary charges to writing, and send them together with a lot of other nonsense to the employee prior to the disciplinary hearing, made the dismissal automatically unfair. From now on, this employer isn’t going to do a damn thing without calling up his lawyers first, as his ability to deal with his employees in a fair and transparent way (the actual policy behind the procedures) has been utterly destroyed.
With these changes, and the continual increase in mediation, Acas’s role and power in employment disputes is getting steadily greater. I have some reservations about Acas:
- The advisors on their telephone helpline are mostly good, but some live in a complete cloud cuckoo land, replete with bosses and workers engineering social nirvana through the use of staff handbooks and consultation meetings - this translates into incorrect advice, motivated by the organisation’s policies;
- Their conciliators - who ring up both sides in an employment dispute to attempt to persuade them to settle - are judged by the number of cases they successfully conciliate, but their refusal to give legal advice on the merits of a party’s case means that often they just badger people. “Ooh, go on, you’re only £200 apart” - that party nevertheless being £1000 down on what the tribunal award will certainly be doesn’t matter. This isn’t everyone at Acas, but it’s a fair description of at least a third of the conciliators I’ve dealt with. This leads to injustice.
I’ve a feeling it’ll be a very different world in employment law in a few years, but will it really be any better than it was pre-2004?
Not a piece of advice I enjoy giving to an employer, but this is a common query I receive:
My [insert job title] has been embezzling money / stealing from me / running a competing business on the internet / sexually assaulting the receptionist. I’d like to make him redundant by reorganising the department - how do I start the consultation process?
For some reason, employers are scared witless by the idea of going down a disciplinary process where you accuse someone of something, do an investigation, find out it’s true, sack them, and put “Dismissed for gross misconduct” on reference requests for ever more. Many would much rather go through a bland impersonal redundancy process, where everyone tries to save face. The fact that we provide them with easy to use template letters and a schedule for it helps too.
This is foolish in the extreme - if a person’s behaviour warrants it, and the procedure’s right, then dismissal for gross misconduct is the best way. Employers only get in trouble where they’re disingenuous - a smart tribunal easily sees through a succession of minuted meetings and processes to the real underlying reasons.