By Darren Clayton, Doyle Clayton Solicitors, London


Out with the old

Christmas and time off is now a fond memory for employment law folk across the country, who may only dimly recall party games such as the special employment law edition of Trivial Pursuit in which, for the brown piece of pie, one had to guess the collective pronoun for employment lawyers (it is, by the way, a 'tragedy'). Christmas is certainly not a great time for employment litigation work - oddly, most employers do not tend to sack people over the holidays, which leaves many employment lawyers on a meagre diet over the period.



But with the commencement of a New Year comes new hope and new challenges, and sailing into view, just on the horizon, is the new draft Employment Law Bill. Perhaps I should say, rather, that forming on the horizon is the iceberg towards which the doomed statutory disciplinary and grievance procedures (SDGP) will now sail very slowly.



Even before the critical Gibbons review of March 2007, the SDGP system had encountered icy cold waters and there can be few now who wholeheartedly support the regime set out in what is currently section 98A of the Employment Rights Act 1996.



Following that report, however, it has been clear that the SDGP is well on its way to running aground. The only questions that remained were when and how.



Part of the problem could be that two key recommendations of the report were arguably contradictory. The first was that the SDGP should be replaced by clear, simple, non-prescriptive guidelines on grievances, discipline and dismissal in the workplace, for employers and employees (which could have fitted into the 'ordinary' unfair dismissal approach). The second was that Parliament should ensure there are incentives to comply with the new guidelines, by maintaining and expanding employment tribunals' discretion to take into account reasonableness of behaviour and procedure when making awards and cost orders. While on first blush this sounds eminently sensible, it has to be considered that if a party is to be penalised for not following a set process, it is hard to see how that process could be simple and also seen as non-prescriptive.



Undoubtedly, there is now a strong political imperative to offer employees greater procedural protection, and it is easy to understand the desire to extend the unfair dismissal system beyond its standard format of 'ordinary unfairness'. The idea that a departure from a minimum standard of process should render a dismissal automatically unfair also seemed to hold advantages. The standard disciplinary and grievance procedures were set at a sensible level (reflecting what many good employers would adopt in any event) and the law stopped short of the feared step of incorporation into all contracts of employment of all employees. The changes were even well publicised and in principle they dovetailed nicely with the 'old' law.



It was only when the clever folk who drafted them delved deeper that the complications began to show. The demise of that system is therefore welcome but, having reviewed the new bill, is it not timely that we question whether the proposed replacement might end up as an addition rather than a replacement? Gone would be the minimum disciplinary and grievance procedures and, in their stead, across a number of jurisdictions (including unfair dismissal and discrimination law), there would be a new code of practice with which employers or employees must comply to avoid an up-to-25% increase or decrease in the level of award.



The code has yet to be written and it is understandable that some may find it too early to raise concerns, but much can be gleaned from the apparent reticence of ACAS to be driven into producing a code that will have such direct effect. Simplistically put, we must consider whether a code is really meant to be just that: a code rather than a set process or rulebook.



Under the 'old' system there have, of course, existed detailed codes of practice for each jurisdiction. These have been used sensibly by tribunals as yardsticks against which to measure the fairness of an employer's actions. Some employers have, of course, been criticised for failing to be familiar with them and this has led to findings of 'ordinary' unfair dismissal/discrimination and awards of compensation, which in the case of discrimination has no technical 'cap' already. But most employers and lawyers have found them an extremely useful guide to avoiding problems. Also, because they are a guide, ACAS and others have been able to write them where necessary in a particular style - a more user-friendly approach devoid of legal starch and often equipped with helpful examples.



It is clear that this flexibility of style and approach, which some may regard as a strength of the 'standard' system, is now becoming cast politically as instead amounting to 'subjectivity'. Clearly there has to be concern that there is a sensible level of standardisation, but a fundamental question must be asked - is there room in employment law for procedural absolutes or should we leave such absolutes to the substantive law itself? Thankfully there is time to iron out any concerns - the bill is not expected to be in force until the early spring of 2009.