Disciplinary Action and a change in employment law practice
There will always be times within any business when disciplinary action needs to be taken. It may be for misconduct or poor performance. However, there are times when procedures may not have been followed properly and in the past the employer was found guilty in a case because of the process rather than the evidence.
With the Employment Act 2008, there will be some changes in disciplinary action but these won’t change the way an employer should act. It will change the fact that:
- * An employer won’t automatically be guilty of unfair dismissal if the employer has failed to follow statutory procedures.
- * Employees will now be able to bring a claim when they haven’t already raised a grievance with their employee and then waited 28 days.
- * Tribunals will no longer have the power to increase or decrease awards by up to 50% for non-compliance.
- * The three month limit extension where statutory procedures are ongoing will be abolished.
There is also a change as there has been a repeal of section 98A of the 2002 Act. It means that the fairness of a dismissal will no longer depend on compliance of procedure. A Tribunal may decide to reduce or even abolish any compensation on the basis that even though a dismissal was procedurally unfair, the dismissal would have occurred regardless of the unfairness.
In Section 4 of the Act the Tribunals will have the power to determine the outcome of a claim without the need for a case to be heard by an Employment Judge or Tribunal Panel. Under the terms of the Act, a case will only be eligible to be “fast-tracked” if:
- * All parties have given written consent to determination with a hearing; or
- * The Respondent(s) to the case haven’t responded to the proceedings or are not contesting the case.
These Employment Law changes mean that claims will be looked at on their own merits and procedural errors won’t automatically imply guilt on the part of the employer. This does not however mean that the employer will win or have any compensation waived – it just opens the door for more common sense. The logistics of cases like these are complex and although there are general procedures that can be followed, expert advice will be needed should it come to a claim.
The best advice is to avoid this route if at all possible and ensure it is a last resort. In order to do this, employment law advice beforehand is wise. By protecting your business from the beginning you can reduce these types of claims and affectively manage your staff as they will understand procedure and policy.
For further information about age discrimination legislation or employment law advice please call 0161 785 2000 
