Change to law on grievances

A new Employment Bill, passing through Parliament at present and probably coming into force in 2009, will abolish the statutory discipline and grievance procedures. These are the procedures which caused the number of formal grievances to soar by effectively barring access to employment tribunal unless a staff member has been through the internal grievance process.

This abolition, however, does not mean that employers will be able to decide their own processes. The Advisory, Conciliation and Arbitration Service (ACAS) has been given the job of producing a code of practice and this code, though not having the force of law, will be seen as a test of the reasonableness of the parties' actions.

Unreasonable failure to comply with the code may lead to a loss or gain of 25 per cent for the claimant depending on where the fault lies.

ACAS has consulted on the code and will publish a final version in due course. There is unlikely to be any need for formal changes in schools and colleges as procedures that comply with present legislation will almost certainly be acceptable under the new code.

Although the Employment Bill will sweep away the statutory grievance and discipline procedures, cases based on them are still moving through the system.

The employment appeal tribunal has recently ruled that a letter to the employer detailing a grievance but saying that the complainant wished the matter to be dealt with informally in the first instance counts as a written grievance (as required by the present legislation). This was despite an apparently clear cut statement in the letter that it was not a formal grievance.

The tribunal took the view that it was what was done, not what was said, that mattered. One may wonder whether this will matter as much under the new regime, but the only advice that can be given at present is that any complaint received on paper from, or on behalf of, a member of staff should be taken as initiating a formal grievance.