Augustine Clement

Note however that the Code does not apply to redundancies. In this article, we explain the law that governs procedural fairness in both redundancy and non-redundancy dismissal from 6 April. PreambleOn 6 April 2009, the statutory procedures were repealed by the Employment Act 2008 and replaced by the new Acas Code of Practice on Discipline and Grievance.

The Codes provisions will be taken into account by tribunals in determining the procedural fairness of most dismissals and an unreasonable failure to observe the Codes requirements may lead to an increase (or reduction) in compensation.

However, the Code does not apply to redundancy dismissals. Thus, for redundancies, the guiding principles of procedural fairness will be those that applied pre-2004. Fair procedure after 6 April Section 98 ERA sets out how a tribunal should approach the question of whether any of the potentially fair reasons listed in S.98(1) and (2) is fair. S.98(4) requires the tribunal to consider whether the employer acted reasonably in treating that reason as a sufficient reason for dismissing the employee.

The tribunal must have regard to the circumstances of the dismissal, including the size and administrative resources of the employers undertaking. The abolition of the DDPs means that, in unfair dismissal cases (including unfair selection for redundancy) where the employer starts the process leading to dismissal on or after 6 April, tribunals must rely primarily on pre-2004 case law on S.98(4) to determine what constitutes a fair redundancy procedure or the pre-2004 case law and the ACAS Code to determine what constitute unfair dismissal.

This means that Polkey is restored to its former glory.The repeal of the statutory procedures by the Employment Act 2008 has been accompanied by the publication of a new Acas Code of Practice on Discipline and Grievance.

In an attempt to move away from the formulaic and prescriptive requirements of the statutory procedures, while still maintaining an incentive to resolve disputes in the workplace rather than through litigation, tribunals have been given power to adjust compensation in a successful tribunal claim by up to 25 per cent to reflect a partys unreasonable failure to follow the Code. 

The Code retains the steps laid down in the Employment Act 2002, but has removed the compulsion. 

Editors NoteWhere your disciplinary and grievance procedure met with the statutory dispute resolution procedure, it will also meet with the Code, hence no change.

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