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Taking a dispute to the Employment Tribunal after 6th April 2009 – Guidance on which legal provisions will apply

Introduction

The legal framework to resolve employment disputes changed on 6 April 2009, when the Employment Act 2008 came into effect. This Act repealed the Employment Act 2002 (Dispute Resolution) Regulations 2004 and relevant provisions of the Employment Act 2002 (the “pre-6th April 2009 regime”), which laid down mandatory “three-step” processes to be followed in the workplace for disciplinary and dismissal procedures raised by an employer and grievances raised by an employee.

Under the current framework, employment tribunals will consider the procedure that has been followed by the parties in dealing with the disciplinary matter or grievance. The Acas statutory Code of Practice on Disciplinary and Grievance procedures, which also came into effect on 6 April 2009, sets out the principles of what an employer and employee should do to achieve a reasonable standard of behaviour to resolve grievance and disciplinary cases.
Employment tribunals will consider whether a failure to follow the Acas code was unreasonable, taking into account factors such as the size of the business, and will have discretion to adjust awards up or down between 0 and 25% in relation to the level of compliance of either party. The Acas Code is supported by guidance which does not form part of the Code but has been prepared by Acas to help employers and employees understand the Code and how to reflect it in their procedures and behaviour.

These arrangements provide for a system for dispute resolution which is intended to be easy to use, and enables disputes to be resolved earlier, with less lost time, expense and stress for all parties.

How will I know which legal regime will apply to any specific case?

At 6 April 2009 there will have been disputes that had started but which were not yet the subject to an employment tribunal claim, and others where a tribunal claim had been lodged, but the case had not yet been heard by the tribunal. A `trigger’ event will decide whether the pre-6th April 2009 regime or the new arrangements apply to a particular case.

The trigger event is the date when the employer started disciplinary or dismissal action, the first step of which is usually a letter sent by the employer to the employee or a meeting, or if no such step was taken the date when the disciplinary action/dismissal happened.

In relation to grievance procedures, the date of the action about which the employee complained is the trigger event.

When will the new arrangements apply?

The new arrangements apply to any case where the trigger event took place on or after 6th April 2009.

When will the pre-6th April 2009 regime continue to apply?

The pre-6th April 2009 regime will continue to apply to cases where the trigger event occured prior to 6 April 2009. This includes the availability of a three-month extension to the time limit in which a claim must be presented. Any such claims will be assessed throughout the case against the pre-6th April 2009 regime with the formal three-step procedure, adjustments for procedural unfairness in the 10 - 50% range and automatic unfair dismissal for non-compliance with the statutory procedures.

Parties to a dispute where the pre-6th April 2009 regime applies cannot agree to the case being dealt with under the new arrangements; the law determines which regime will apply.

• Guide to identifying whether the pre-6th April 2009 regime or new regime applies (43KB)

Cut Off dates

In cases where the action about which the employee complains began on or before 5th April 2009 and continues beyond that date, the pre-6th April 2009 regime will continue to apply subject to final cut off dates. So the pre-6th April 2009 regime will continue to apply only to such cases where the employee submits a written grievance or employment tribunal claim:

1. on or before 4 July 2009 if it relates to a jurisdiction with a 3 month time limit (e.g. a discrimination claim) or
2. on or before 4 October 2009 if it relates to a jurisdiction with a 6 month time limit (e.g. an equal pay claim)

Please see Annex A for example scenarios.

Parallel Regimes

A few cases which are being decided under the pre-6th April 2009 regime may still be running into 2010 because of the impact of time limits e.g. a claim submitted for an event which occurred on 3rd April 2009 where a 6 months time limit applied plus a 3 month extension, which then takes 3 months to get to a hearing, will not reach the tribunal until 2010. It is inevitable that there will be a period of parallel regimes to avoid taking away rights provided under the pre-6th April 2009 regime but it will be clear which regime applies to any particular case.

• Guide to identifying whether the pre-6th April 2009 regime or new regime applies (43KB)

Annex A - Dispute Resolution – Transitional Provisions – example scenarios in cases where the dismissal/disciplinary or grievance procedures apply.

Dismissals (involving disciplinary/dismissal procedure)

1. Mrs A is issued with a step 1 letter on 15 March 2009 and is dismissed on 5 April 2009. On 4 July 2009 she has reasonable grounds for believing that the dismissal procedure is being followed and receives a 3 month extension until 4 October with the case being heard at an employment tribunal during December 2009 – the pre-6th April 2009 regime (the “old regime”) applies as on or before 5th April 2009 the employer had taken a step under the standard dismissal and disciplinary procedure.
2. Mr B is dismissed on 6 April 2009, his employer had issued a step 1 letter in March 2009. Mr B makes an unfair dismissal claim on 6 May 2009 with the claim being heard at an employment tribunal in June 2009 – old regime applies as on or before 5th April 2009 the employer had taken a step under the standard dismissal/disciplinary procedure.
3. Miss C is dismissed on 6 May 2009, the employer had issued a step 1 letter on 6 April 2009. She makes an ET1 claim for unfair dismissal on 4 July 2009 with the case being heard by an employment tribunal during September 2009 – new regime applies as employer took action on or after 6 April 2009.

Employer takes action which forms the basis of a grievance with a 3 month time limit e.g. a discrimination claim

4. Employer takes action on 10 January 2009 which continues beyond 6 April 2009. Mrs D submits a written grievance on 7 April 2009. The case is heard at an employment tribunal in December 2009 – old regime applies as where an act begins on or before 5 April 2009 and continues, and the grievance is put in before 4 July, the old regime applies.
5. Employer takes action on 10 January 2009 which stops on 10 February 2009. Mr E submits a written grievance on 11 February 2009 and makes an ET1 claim on 7 April 2009 - old regime applies as the act takes place before 6 April 2009.
6. Employer takes action on 10 January 2009 which continues until 9 January 2010. Miss F submits a written grievance on 10 January 2010 and makes an ET 1 claim – new regime applies as although Miss G may have had grounds for a grievance before 6 April 2009, the written grievance has been made (or ET 1 presented) after 4 July 2009.
7. Employer takes action on 5 April 2009 which continues until 5 May 2009. Mr G submits a written grievance on 5 July 2009, makes an ET1 Claim on 4 October 2009 and the case is heard by an employment tribunal in January 2010 – new regime applies as written grievance submitted (or ET 1 presented) after 4 July 2009.
8. Employer takes action on 6 April 2009 which continues until 5 November 2009. Mr H submits a written grievance on 6 November 2009, makes an ET 1 claim on 4 May 2010 and the case is heard during June 2010 – new regime applies as employer took action on or after 6 April 2009.
9. Employer takes action on 18 March 2009 which continues beyond 5 April 2009. Mrs X submits a written grievance on 16 June 2009. The action underpinning the grievance continues after the grievance was submitted (and the time limit for bringing the claim does not start to run). Mrs X makes an employment tribunal claim on 16 November 2009. The case is heard at an employment tribunal in February 2010 – old regime applies as where an act begins on or before 5 April 2009 and continues, and the grievance is submitted on or before 4 July, the old regime applies.

Employer takes action which forms the basis of a grievance with a 6 month time limit e.g. an Equal pay claim

10. Employer takes action on 10 January 2009 which continues beyond 6 April 2009. Mrs I submits a written grievance on 7 April 2009. The case is heard at an employment tribunal in December 2009 – old regime applies as where an act begins before 6 April 2009 and continues, and the grievance is put in (or ET 1 presented) on or before 4 October the old regime applies.
11. Employer takes action on 10 January 2009 which continues until 9 January 2010. Miss J submits a written grievance on 10 January 2010 and makes an ET 1 claim – new regime applies as although may have had grounds for a grievance before 6 April 2009, the written grievance has been made (or ET 1 presented) after 4 October 2009.
12. Employer takes action on 5 April 2009 which continues until 5 May 2009. Mr K submits a written grievance on 5 June 2009, makes an ET1 Claim on 3 October 2009 and the case is heard by an employment tribunal in January 2010 – old regime applies as written grievance submitted (or ET 1 presented) before 4 October 2009.
13. Employer takes action on 5 April 2009 which continues until 5 November 2009, Mrs L submits written grievance on 7 November 2009, makes an ET 1 claim on 4 May 2010 and the case is heard during June 2010 – new regime applies as although employer took action before 6 April 2009, this action continued beyond 5 April 2009 and the written grievance was submitted (or ET 1 presented) after 4 October 2009.
14. Employer takes action on 6 April 2009 which continues until 5 November 2009. Mr M submits a written grievance on 6 November 2009, makes an ET 1 claim on 4 May 2010 and the case is heard during June 2010 – new regime applies as employer took action after 6 April 2009.Introduction – the new arrangements