Daniel Barnett

Dispute Resolution Abolition - Transitional Provisions

Well, the Employment Act 2008 (Commencement No. 1, Transitional Provisions and Savings) Order 2008 provide that the statutory dismissal and grievance procedures are abolished from 6th April 2009, don't they?

Actually, no. What they say is as follows (and I'm simplifying it here; you need to read the full SI to understand the full horror of it):

In a dismissal case, the old rules continue to apply if the employer has sent a step 1 letter, or held a step 2 meeting, before 6th April (or, obviously, dismissed the employee before 6th April).  So where the employer holds off doing anything until after 6th April, the statutory dismissal procedure rules are abolished and we're back to the pre-2004 position.

In a statutory grievance case (the importance being that the employee needs to have sent a step 1 letter and waited 28 days before being allowed to bring a tribunal claim), the statutory grievance procedure rules are abolished provided the action about which the employee complains occurred on or after 6th April 2009.  Where the action occurred wholly before 6th April, then the statutory grievance procedure will continue to apply. However, it gets a bit more complicated for acts which began before 6th April 2009 but continue after that date.  For such acts, :-

  • for almost all types of claim (except equal pay, redundancy payments and some industrial action claims), the old statutory grievance procedure applies if the employee sends a step 1 grievance letter, or presents an ET1, by 4th July 2009. If that date passes without a step 1 letter or ET1 being sent, then the new regime applies and the statutory grievance procedure will not engage.
     
  • for equal pay, redundancy payments and some industrial action claims, the same applies except the changeover date is 4th October rather than 4th July.

Note: this is a summary - the transitional provisions do contain some traps for the unwary.  For a much fuller consideration of these provisions, I recommend Barry Clarke's excellent paper Dispute Resolution: Frying Pan to Fire (available to members of the Employment Lawyers' Association).

Daniel Barnett
3rd March 2009

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