Employment update

Resolving disputes at work: the new dispute resolution regulations

Diarmuid Bunting, intern at Law Centre (NI), sets out what employees and those who advise them need to know about the new regulations on statutory dispute resolution.

It has long been the intention of the government to reduce the number of industrial tribunal applications by encouraging alternative dispute resolution. On 3 April 2005, Schedule 1 of the Employment (NI) Order 2003 (the 2003 Order) came into effect, with some significant consequences for bringing an application before an industrial tribunal. The framework of the 2003 Order is implemented by the Employment (NI) Order 2003 (Dispute Resolution) Regulations (NI) 2004 (the 2004 Regulations). It outlines new minimum internal procedures for resolving certain employment disputes.

The new provisions apply to grievance procedures for discontented employees, as well as to circumstances of dismissal and discipline by employers. For simplicity, this article will tend to focus on the former, with a short discussion on dismissal and disciplinary procedures at the end. The dismissal and disciplinary procedures for employers substantially mirror the grievance procedures for employees. However, there are some substantial differences.

What is the new procedure?

If you have a grievance, you are required to send a written statement of it to your employer. The steps required after this point depend upon whether the employee is still employed by the employer. Generally, the standard procedure applies. However, if the employee no longer works for the employer, the modified procedure applies.

The standard procedure

An employee must normally begin a new standard procedure before making any claim to a tribunal. In general, the procedure involves three steps.

n The employee must set out the basis of the complaint in writing and send a copy of this to the employer (a step one grievance letter).

n The employer must invite the employee to attend at least one meeting at a reasonable time and place to discuss the grievance.

n If the employee appeals the decision in the first meeting, the employer must invite her/him to a further meeting.

The first meeting must not occur until the written complaint has been given to the employer and the employer has had a reasonable opportunity to consider her/his response. The employee must take all reasonable steps to attend the meeting. If s/he does not attend, the employer is only obliged to rearrange the meeting once, and even then only in limited circumstances. The employee has the right to be accompanied by a work colleague or a trade union representative.

Each step in the procedure must be taken without undue delay, and the timing and location of meetings must be reasonable. Meetings must be conducted in such a way as to enable both employers and employees to explain their respective cases.
So far as is reasonably practicable, the employer should be represented at the second (appeal) meeting by a more senior manager than attended the first. After each meeting the employer should inform the employee of her/his decision. Note: after the first meeting, the employee should also be informed of her/his right to appeal.
The modified procedure

A less onerous two-step process is used when the grievance is raised after employment has ceased and the employer was unaware of the grievance, or was aware of the grievance before the employment ceased but the standard procedure was not completed before the last day of employment. This merely involves the employee sending a written statement of her/his grievance to the employer, and the employer responding in writing. Further, both parties must have agreed in writing that the modified (rather than standard) procedure should apply.

How does the new grievance procedure affect claims?

The 2003 Order can affect potential claims in three ways. First, failing to follow the applicable procedure will prevent certain claims from being presented to an industrial tribunal. The effect of this is that unless an employee has put her/his grievance in writing, and allowed at least 28 days to pass, s/he will no longer be able - under most circumstances - to make a claim to an industrial tribunal based on that grievance. This rule does not apply if the grievance concerns dismissal or disciplinary action taken against an employee on conduct or culpability grounds.

If the employee has not initiated the statutory grievance procedure before the expiry of the usual limitation period there will be no extra time. However, if s/he attempts to present an application within the time limit (usually three months) which is declined because s/he has not written a letter to the employer stating the basis of the complaint, this application will prompt an automatic three month extension, subject to the applicant sending such a letter within 28 days of the normal expiry date.
If the employee has initiated the statutory procedure before the expiry date, for instance by sending a step one grievance letter, a three month extension will also be triggered. This extension is automatic and no further contact with the tribunal is required to bring it about.

Further, if either party to an action has failed to meet the requirements set out in the 2004 Regulations, the tribunal is under a duty to increase or decrease compensation by between ten and 50 per cent if it considers it just and equitable in all the circumstances to do so. Whether any adjustment is an increase or a decrease will depend on which party failed to comply. An alteration in the amount of compensation will not occur if there are exceptional circumstances or when no award of compensation is granted.

When does the new procedure not apply?

There are a number of circumstances listed in the 2004 Regulations when the statutory grievance procedures do not apply. For example, these include when the grievance is that the employer has dismissed (or is contemplating dismissing) the employee, or has taken (or is contemplating taking) relevant disciplinary action against the employee.
Likewise, the procedures do not have to be followed where the employee has reasonable grounds to believe that putting the grievance in writing to the employer would result in harassment or a threat to the employer or her/his property. Nor do the procedures apply to collective grievances.

Dismissal & disciplinary procedure

If an employer is contemplating taking disciplinary action against an employee on grounds of conduct or capability, or the employer is contemplating dismissal, the responsibility lies with the employer to start a dismissal or disciplinary procedure. Dismissal and disciplinary procedures are not applicable where there is constructive dismissal. In such circumstances, the employee has to initiate and follow the statutory grievance procedures discussed above.

n The employer is required to send a written statement of her/his reasons.
n The employer must invite the employee to attend at least one meeting at a reasonable time and place to discuss the matter.
nIf the employee appeals the decision in the first meeting, the employer must invite her/him to a further meeting.

The way the meetings are held and the rules which apply to them are similar to the grievance procedures.

Additionally, it is automatically unfair under the 2003 Order, even in most cases for gross misconduct, for an employer to dismiss an employee without completing the statutory procedures, where non-completion is attributable to the employer. However, this does not necessarily prove the employer’s actions were unreasonable if the employer can show that s/he would have decided to dismiss the employee if the requisite procedure had been followed.

As with the grievance procedure, there are situations where the statutory dismissal and disciplinary procedures do not apply.