PLAN B: WILL THE NEW STATUTORY DISPUTE RESOLUTION PROCEDURES WORK? Tom Coghlin and Akua Reindorf

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1 PLAN B: WILL THE NEW STATUTORY DISPUTE RESOLUTION PROCEDURES WORK? Tom Coghlin and Akua Reindorf 1. After just 4½ years of operation the reforms introduced by the Employment Act 2002 ( EA 2002 ) and the Employment Act 2002 (Dispute Resolution) Regulations 2004 ( the DR Regs ) are to be phased out, starting a week from today on Monday 6 th April The EA 2002 regime was almost universally unwelcomed by workers, employers, judges, academics and practitioners and it will certainly not be missed. In our view, almost anything would be an improvement on it. The purpose of this seminar is not to criticise the wretched EA 2002 regime but to analyse the workability of the Government s Plan B. As we shall see, it is far from ideal. MATERIALS 2. Plan B is embodied in a number of texts: 2.1. The Employment Act 2008 ( EA 2008 ), which makes amendments to various other pieces of legislation; 2.2. The new ACAS Code of Practice on Disciplinary and Grievance Procedures, April 2009 ( the ACAS Code ); 2.3. The Guidance accompanying the ACAS Code; 1

2 2.4. The Employment Act 2008 (Commencement No.1 Transitional Provisions and Savings) Order 2008 SI 2008/3232; 2.5. The Employment Tribunals (Constitution and Rules of Procedure) (Amendment) Regulations 2008 SI 2008/3240, which make consequential amendments to the ET Rules of Procedure. REPEALS 3. The entire dispute resolution procedure regime, including ss29-33 and Scheds 2-4 EA 2002, is repealed by s1 EA 2008 (subject, of course, to the applicable transitional provisions which we shall discuss below). 4. The repeal of s32 EA 2002 means that the statutory bar on bringing claims that have not been grieved will disappear. 5. Extensions of time under Reg 15 of the DR Regs, by the bringing of grievances or appeals against dismissal, will disappear. 6. The system of adjustments to awards previously set out in s31 EA 2002 is in effect replaced by a new s207a TULRCA 1992, which we shall discuss further below. 7. With regard to unfair dismissal legislation, s98a ERA 1996 is repealed. Accordingly, 7.1. Automatic unfair dismissal for failing to comply with applicable procedural requirements will no longer exist; 7.2. Polkey will ride again: dismissals that are procedurally unfair will not be cured of their unfairness even if the employer can show that on the balance of probability the unfairness made no difference Questions of unfair dismissal are now to be determined, broadly, along the same lines as they were before 1 October 2004; however we can expect a greatly increased reliance and reference to the ACAS Code in all such cases. 2

3 7.4. It is not clear, however, to what extent the Courts decisions made in relation to s98a will continue to influence decisions by Tribunals. For example, what account, if any, will Tribunals take of the list of minimum materials which ought to be provided in every case to an employee at risk of redundancy (see Alexander v Brigden Enterprises Ltd [2006] ICR 1277)? One commentator has gone so far as to argue that it is likely that there will be a considerably lower standard of reasonableness today in light of the rudimentary statutory minimum, which means that tribunals are far less likely to give a finding of unfair dismissal 1 We take a more optimistic view, based on the experience that Tribunals have for the last 4½ years appeared able to distinguish between the different levels of procedural fairness required for automatic and ordinary unfair dismissals, but only time will tell. TRANSITIONAL PROVISIONS 8. Although the new regime comes into force on Monday 6 th April 2009, the DR Regs are not going without a fight: the transitional provisions the Employment Act 2008 (Commencement No.1 Transitional Provisions and Savings) Order 2008 SI 2008/3232, which are fittingly Kafkaesque in their drafting, will have net effect of keeping the DR Regs in operation as regards some, but not all, claims for the next year or more. 9. In brief, the new scheme will apply where the statutory procedures have not already been triggered before 6 th April However it is necessary to take note of the detailed provisions which apply to both disciplinary action / dismissals and to grievances. Dismissals 10. The SDDP will continue to apply where the employer has, on or before 5 th April 2009, 1 Astrid Sanders, Part One of the Employment Act 2008: Better Dispute Resolution? (2009) 38 ILJ 30. 3

4 10.1. complied with the requirements of para 1, 2 (statement of potential dismissal/disciplinary issue and/or the meeting under the standard procedure) or 4 (misconduct statement under the modified procedure), or taken relevant disciplinary action against the employee or dismissed the employee. 11. Therefore employers who are currently about to begin disciplinary proceedings would be well advised to wait until next Monday, so as to avoid the possibility of automatic unfair dismissal claims and/or automatic uplifts of up to 50%. Those who wait until 6 th April before taking action that would amount to compliance with Step 1 will benefit from a regime which is rather more benign to them than the current system. 12. We may predict that there will be disputes in some cases about whether an employer has complied with Step 1 for the purposes of these provisions, with employers paradoxically arguing, in an attempt to avoid the application of the more rigid old regime, that they have not complied with Step 1. Grievances 13. The SGP will continue to apply where: the action complained about occurred wholly before 6 th April 2009; or the action complained about starts on or before 5 th April 2009 and continues beyond that date and the employee presents a complaint to the ET or submits a grievance: on or before 4 th July 2009; or on or before 4 th October 2009 for claims 4

5 i. where s238 TULRCA applies (dismissals in connection with industrial action) 2 ; ii. for Equal Pay; iii. for redundancy payments. 14. Note that where the action complained about occurred wholly before 6 th April 2009, the statutory grievance procedures will continue to apply. This is different to the position with regard to disciplinary action or dismissal, where the application of the old regime is triggered solely by the action of the employer in complying with Step 1. There will be some such cases, including constructive dismissal cases, in which the grievance procedure will continue to apply well into the Summer. 15. With regard to continuing acts, the position depends on what, if any, steps have been taken by the employee in raising a grievance, and the nature of the cause of action in question. 16. In the context of claims for redundancy payments and equal pay, we may see claims to which the old statutory proecudures will apply well into the future. Consider the following examples: Employee A is dismissed by reason of redundancy on 2 nd October 2009 and is told he will not receive a redundancy payment, and who complains in writing on or before 4 th October 2009 about the failure to pay his redundancy pay. The old statutory grievance procedure applies because he has grieved on or before 4 th October His ordinary 6 month time limit 3 is therefore automatically extended by 3 months 4, to 1 st July He may even enjoy a discretionary extension of time 5 such that he is not required to present his claim until 1 st October The old statutory grievance procedure will however continue to apply. 2 But note that the statutory grievance procedures will not apply to a claim under s238 itself, since it is a claim about dismissal: see Reg 6(5) of the DR Regs. 3 ERA 1996, s164(1) DR Regs, Reg 15(1) and (3)(b). 5 ERA 1996, s164(2). 5

6 16.2. Employee B suffers discriminatory pay inequality from 1 st January 2009 onwards. She complains in writing about that on or before 4 th October thus triggering the operation of the statutory procedures under the transitional provisions. The matter is not rectified and the pay inequality continues. She (arguably) has no obligation to resubmit a grievance about the continuing pay inequality 6. She continues in employment, leaving on 1 st April She can bring a valid claim as late as 31 st December It seems that the old statutory procedures statutory bar, time limit extensions, adjustments of awards and all will continue to apply to her claim. ADJUSTMENTS OF AWARDS: S207A TURLCA 17. Section 3 EA 2002 adds a new s207a into TULRCA This gives the Tribunal a power to increase or reduce any award by up to 25% if it considers that a party has failed unreasonably to comply with the provisions of an applicable Code of Practice. The only Code of Practice that has been issued to date is the April 2009 ACAS Code. 18. Section 207A will be relevant in the vast majority of Tribunal cases. It applies to the full range of Tribunal jurisdictions currently found in Schedule 3 to EA 2002 (ie including breach of contract claims, which were excluded from Schedule 4 but included in Schedule 3). However that is not the end of the story because s207a only bites on claims to which an applicable Code of Practice applies, and the Code of Practice does not apply to certain common claims (eg redundancy dismissals, as we shall discuss below). 19. Although strictly s207a relates only to remedy, parties will naturally seek to obtain findings of fact at the liability stage which will be useful at the remedies stage. Section 207 already requires the Tribunal to have regard to relevant provisions of Codes of Practice issued by ACAS and/or the Secretary of State at the liability stage, and Codes of Practice are sometimes, but by no means always, cited in unfair dismissal cases. The 6 See Smith v Network Rail Infrastructure Ltd [2007] All ER (D) 253 (May), EAT; Weare v HBOS plc [2008] All ER (D) 279 (Oct), EAT. 7 A 6-month time limit applies to such claims, which runs from the date of the termination of employment: EqPA 1970, s2za (subject to the 6-year backstop: EaPA 1970, s2zb). That time limit is extended by 3 months by the presentation of a statutory grievance: Reg 15 of the DR Regs. 6

7 combined effect of ss207 and 207A will be to elevate the ACAS Code to the status of a centrally-important legal text in almost any employment case, and in particular cases involving dismissals, at both the liability and remedy stage. Tribunals may furthermore be more receptive to such materials, having grown used since 2004 to referring to the wording of the statutory procedures when deciding unfair dismissal cases. 20. The s207a approach differs from that under the EA 2002 regime in a number of ways: There is no minimum adjustment of awards; There is no presumption that an adjustment to an award will be made. A Tribunal may make adjustments if it considers it just and equitable in all the circumstances to do so ; The adjustment will apply to basic awards for unfair dismissal (in contrast with the position under the old regime, under which the only adjustment to the basic award was in the form of a minimum 4 week basic award under s120(1a) ERA); The adjustment will presumably also apply to awards for the denial of the right to be accompanied (ErelA 1999); The system under Reg 12 of the DR Regs is swept away. Under the old system, parties had sequential obligations not unlike a tennis match: the employer is under an obligation to invite the employee to a meeting and to provide certain information; if that obligation is complied with then the ball is in the employee s court and he or she is placed an obligation to attend; but if one party fails to comply the other party is released from the requirement to participate in the process. This frequently put the innocent party in the difficult position of having to decide whether to continue to participate or whether to withdraw from the process As a result of this, there will be cases in which both parties are in breach of requirements of the Code. In such cases it will presumably be open to a 7

8 Tribunal both to adjust the award upwards, and to adjust it downwards 8. It is not clear whether the 25% limit is intended to apply at the conclusion of the process (so as to achieve a maximum uplift or reduction of 25%), or whether it is permissible for the Tribunal to increase an award by, say, 50% (to reflect very serious default by the employer) before reducing by 25% (for the employee s failure), thus producing an overall uplift of 20%. In practice we would expect a Tribunal to take a fairly broad-brush approach to such issues; The different scope of the Code of Practice, as compared with the old statutory procedures, will be significant. The statutory procedures focus exclusively on procedural matters. The Code, by contrast, expresses principles of susbstantive fairness. 21. However the authorities under the EA 2002 regime with regard to adjustments of awards such as they are - will presumably continue to be relevant. 22. A series of questions arises with regard to the conditions required for the adjustment of an award: What will constitute a failure to comply with the Code? This will be a particularly difficult question given the essentially vague non-statutory language which is found throughout the Code; In what circumstances will a failure to comply with a Code of Practice be reasonable? Even applying the range of reasonable responses approach, which we presume will apply, it is hard to envisage many such circumstances What factors will be relevant to the question of whether it is just and equitable to make an adjustment to an award? Section 31 EA contained equivalent wording but (assuming the absence of excecptional circumstances ) it related only to the amount of the adjustment, not to the question of whether an adjustment should be made at all. 8 It does not matter in which order these successive adjustments are made. 8

9 Many Tribunals may take the view, in the absence of any statutory presumption that any award should be adjusted, that it would not be just and equitable for an award to be adjusted for reasons unconnected with the accrual of the cause of action, such as a failure to submit a grievance A failure which gave rise to a 20% uplift under s31 EA 2002 can be expected to attract a lower uplift now. This is because: i. The lower maximum amount of an adjustment is likely to result in lower adjustments further down the scale; ii. The highest awards should arguably be reserved for wholesale failures. Given the broader scope of the Code compared with the statutory procedures (for instance the Code covers informal resolution of grievances; the investigation stage of disciplinary and grievance processes; and issues of substantive as well as proceedural fairness), wholesale failures will be much rarer. THE CODE OF PRACTICE AND THE GUIDE: INTRODUCTION 23. There has, of course, been an ACAS Code of Practice on Disciplinary and Grievance Procedures for many years, and Tribunals have been required to have regard to it in deciding on the fairness of a dismissal. 24. It is probably fair to say that reliance on previous versions of the Code has been lacklustre over the years despite its quasi-legislative force. However, now that issues of remedy will be affected by compliance with the Code, it is inevitable that it will play a much greater part in Tribunal proceedings. The new Code also has far greater reach than the old, since it will apply to claims other than unfair dismissal. It is also likely to be subjected to much closer scrutiny than previous versions of the Code at appeal level. THE STRUCTURE OF THE CODE 9

10 25. The published Code is preceded by a Foreword which is not binding. The Foreword is followed by an Introduction which forms part of the Code and is binding. Both the Foreword and the Introduction contain various general suggestions. A breach of the requirements set out in the Foreword will not attract an adjustment to compensation. A breach of any part of the Introduction may attract an adjustment. 26. The main body of the Code consists of a chapter on discipline and a chapter on grievance. 27. The Code is accompanied by a lengthy Guide, to which Tribunals are not required to have regard. THE LANGUAGE OF THE CODE 28. The Code reads more like case law than legislation. It contains no mandatory requirements or directions. It does not use the words must or shall. Instead it uses should in almost every sentence. It is not clear whether this is intended to mean has to or ought to. Support for the latter construction comes from the Introduction, in which it is noted that it may sometimes not be practicable for all employers to take all of the steps set out in this Code (paragraph 3, and see further below). 29. Other language which sets alarm bells ringing includes: it would normally be appropriate to (paragraph 9); it is usual to (paragraph 18); ideally (paragraph 25); it is advisable to (paragraph 29); consideration should be given to (paragraph 33); it may be appropriate (paragraph 44). 10

11 THE FOREWORD 30. The Foreword states that: Employers and employees should always seek to resolve disciplinary and grievance issues in the workplace. Where this is not possible employers and employees should consider using an independent third party to help resolve the problem. The third party need not come from outside the organisation but could be an internal mediator, so long as they are not involved in the disciplinary or grievance issue. In some cases, an external mediator might be appropriate. 31. A version of this suggestion was contained in the body of the earlier draft of the Code, so that failure to comply with it would have attracted an adjustment to compensation. In the final version it has been moved to the Foreword. It does not seem likely that the distinction between the Foreword and the body of the Code will be immediately apparent to employers and employees. There is clearly a risk that people will consider the suggestion that mediation be considered to be a mandatory requirement. 32. Another part of the Foreword which was originally located in the main Code is the suggestion that Employers would be well advised to keep a written record of any disciplinary or grievances [sic] cases they deal with. This rather weak suggestion might be thought to understate the likely consequences in Tribunal for an employer which fails to keep a record. THE INTRODUCTION Definitions 33. The Introduction defines disciplinary situations and grievances. 34. Disciplinary situations include misconduct and/or poor performance (paragraph 1). The Code is silent as to whether it applies to ill health absence procedures, which have traditionally been regarded as a subset of capability procedures. The Code does not apply to redundancy cases or the renewal of fixed term contracts on their expiry. It is unclear whether the Code will apply if a fixed term contract is not renewed on 11

12 performance grounds, or indeed where an employee complains that a fixed term contract has not been renewed for discriminatory reasons. 35. Grievances are concerns, problems or complaints that employees raise with their employers (paragraph 1). Although it is not stated in the Introduction, a grievance may be oral or written, but the an employer is not required to deal with an oral grievance in the same way as a written grievance (more on this below). 36. Ex-employees are not mentioned, and there is no equivalent to the modified procedure under the old regime. It appears therefore that the new Code will not apply to grievances brought by people who have left their employment. If this interpretation prevails, many constructive dismissal complaints will be affected, and there will be a distinction between constructive dismissal cases in which a grievance has been raised in advance of the resignation and those in which the grievance forms part of the resignation letter or is presented afterwards. In the former an uplift or reduction in compensation will be possible, but not in the latter. Written disciplinary and grievance policies 37. The Introduction states that rules and procedures for handling disciplinary and grievance situations should be set down in writing and should be specific and clear. 38. Employees and their representatives should be involved in the development of the internal procedures. There are several observations to be made about this: The scope of this requirement is not clear. It would seem unlikely that employers who already have proper procedures in place are required to redraft them with the involvement of employees and representatives. The Guide supports this interpretation, stating that employees and their representatives should be consulted before new or additional rules are introduced (page 14) (emphasis added). Note that the Guide uses the word consult rather than involve The word involved seems carefully chosen, if rather devoid of meaning. If proper consultation was envisaged one would expect that to be made clear. 12

13 38.3. Employers appear to be required to involve both employees and their representatives. 39. There is no reference in the Introduction or elsewhere in the Code to training employees and managers in the procedures. The grievance flowchart on p.6 of the Guide does show training of managers and employee representatives on how to handle grievances effectively. The disciplinary flowchart on p.5 does not refer to training. The disciplinary section at p.12 of the Guide says only: Writing down rules helps both managers and employees to know what is expected of them. The rules should be made clear to employees. The employers exemption 40. It has been observed above that the Introduction contains a potential get-out-of-jail card for employers in the phrase it may sometimes not be practicable for all employers to take all of the steps set out in this Code (paragraph 3). The first part of this sentence explains that in deciding whether to make an adjustment to an award of compensation the Tribunal will have regard to the size and resources of the Respondent. 41. This implies that the Code will not be applied with the same stringency to smaller employers as it will to larger employers. This broad principle is as old as s.98(4) ERA and its forebears, since under those provisions Tribunals have always had to consider the size and administrative resources of the Respondent organisation. However until now the principle has been limited to issues of liability and more specifically the question of whether a dismissal for a potentially fair reason was fair in all the circumstances of the case. The extension of the principle to issues of remedy (specifically uplift and reduction in awards) and to cases other than unfair dismissal may or may not be problematic. 42. It is notable also that the exemption does not extend to employees. There is no indication that it might not be practicable or possible for employees to comply with all of the many requirements imposed upon them by the Code. 13

14 General requirements 43. The Introduction sets out some key principles which are applicable to both disciplinary and grievance cases. 44. There is a requirement on both employers and employees to raise and deal with issues promptly and not to unreasonably delay meetings, decisions or confirmation of those decisions. 45. There is also a requirement on both employers and employees to act consistently. In relation to employers this requirement is easily understood, but its application to employees is rather mysterious, particularly in the case of employees facing disciplinary action. 46. The remaining general requirements apply only to employers: Employers are required to carry out any necessary investigations, to establish the fats of this case. This is an improvement on the former regime, which did not impose any requirement to investigate Employers are required to inform employees of the basis of the problem and allow them to put their case in response before any decision is made. This is uncontroversial in relation to disciplinary proceedings. Since it appears in the general requirements section, however, it must also relate to grievance proceedings. Once possible construction is that it imposes an obligation to allow an employee against whom a complaint has been made to respond to it. This is common practice in some organisations, though by no means all Employers are required to allow employees to be accompanied at formal meetings. The statutory right to be accompanied remains unrepealed in the Employment Relations Act Breach of the ERelA provisions attracts a protective award of two weeks pay. It is unclear whether Tribunals are expected to make a protective award under the ERelA as well as giving an uplift under the Code, and if so in what order. The sums involved in this 14

15 calculation are likely to be very small, however, since a week s pay is capped, so in practice this issue may not trouble Tribunals greatly Employers must allow employees to appeal against any formal decision. This extends the right of appeal in disciplinary cases, which formerly applied only to dismissals. Employers ought to check their internal disciplinary procedures for compliance with this requirement making sure that they involve employees and their representatives in making any necessary changes. DISCIPLINE 47. It is to be welcomed that the new Code contains a section specifically dealing with investigation of disciplinary allegations. 48. The Code says it is important to carry out necessary investigations without unreasonable delay. The use of the word necessary comes as close as the Code ever gets to imposing a blanket requirement on employers. 49. As for notification requirements, the employer should inform the employee in writing that there is a disciplinary case to answer, the time and venue for the disciplinary hearing and that he or she has the right to be accompanied (paragraphs 9 10). 50. The Code is at its vaguest in setting out the degree of information which the employee is entitled to prior to the disciplinary hearing (the old Step 2(2)(a)). The notification itself should: contain sufficient information about the alleged misconduct or poor performance and its possible consequences to enable the employee to prepare to answer the case at a disciplinary meeting 51. This is relatively uncontroversial, but the Code goes on to say that it would normally be appropriate to provide at this stage copies of any written evidence, which may include any witness statements (paragraph 10) (emphasis added). These multiple ambiguities are highly unsatisfactory, and this part of the Code seems bound to end being the subject of appeal. 15

16 52. The Guide is rather less equivocal about the notification requirements, stating simply that Employees should be informed of the allegations against them, together with supporting evidence, in advance of the meeting (p.13). 53. Another aspect of the disciplinary section which is likely to prove controversial is the provision about attendance at the disciplinary hearing. Paragraph 12 requires employers and employees to make every effort to attend the meeting. Paragraph 24 entitles an employer to make a decision in the absence of the employee on the basis of the evidence available where the employee is persistently unable or unwilling to attend a disciplinary meeting without good cause. 54. Different constructions of this sentence are possible. Does good cause attach to unable or just to unwilling? If so, what could unable without good cause mean? And how many times is an employee permitted to be absent without good cause before such inability becomes persistent, thus triggering the employer s right to decide the matter in his absence? 55. Paragraph 12 is also problematic in relation to the evidence presented at the disciplinary hearing. It is quite clear that an employer is not required to call its own witnesses, but merely to go through the evidence that has been gathered. The employee must then be given a reasonable opportunity both to ask questions and to call relevant witnesses. This seems to mean that it is the employee s duty to call and question witnesses who have given evidence to the investigation. If they wish to do so (or indeed if the employer wishes to do so) then advance notice is required. 56. Paragraphs deal with workers right to be accompanied. This is largely a reiteration of the existing statutory provisions, although the Code takes the opportunity to comment on the meaning of a reasonable request to be accompanied. Amongst other things, it would not normally be reasonable to insist on being accompanied by a companion whose presence would prejudice the hearing. The meaning of this is far from clear, and it is not explained in the Guide. 57. It has always been the case that the companion is not allowed to answer questions on the worker s behalf, and that is repeated in paragraph 16 of the Code. That paragraph 16

17 also says, however, that the companion has the right to respond on behalf of the worker to any view expressed at the meeting. The dividing line between this and responding to questions may be difficult to draw in practice. 58. Not surprisingly the Code does not take account of the very recent case of R (on the application of G) v The Governors of X School [2009] EWHC 504 (Admin) in which the administrative court held that an employee may be represented at disciplinary and appeal hearings by a legal representative where those hearings determine his civil rights and obligations for the purposes of Article 6 of the ECHR. Note that the Defendant in that case has been granted permission to appeal to the Court of Appeal. 59. There is good guidance on the appropriate level of disciplinary action to take in the circumstances of each case, which is largely familiar and is amplified at length in the Guide. All decisions must be notified to the employee in writing. 60. All disciplinary decisions are appealable. The appeal hearing should ideally be at an agreed time and place (paragraph 25). This sets the bar very low indeed for employers. 61. The fact that disciplinary outcomes (including dismissal) are appealable must extend the scope of the disciplinary procedures to ex-employees, although this is not set out explicitly. The flowchart at p.5 of the Guide shows providing the employee with an opportunity to appeal as occurring before employee dismissed, but this surely cannot be read as requiring an appeal to be completed before the dismissal takes effect. 62. Two types of special case are set out in the Code (paragraphs 29 30). Firstly, where disciplinary action is considered against an employee who is a union representative, it is advisable to discuss the matter at an early stage with a union official after obtaining the employee s consent. Secondly, where an employee is charged with or convicted of a criminal offence this is not normally in itself a reason for disciplinary action, but consideration should be given to the effect of the charge or conviction on the employee s suitability to do the job and his relationship with his employer, work colleagues or customers. 17

18 GRIEVANCE 63. An informal grievance may be raised orally, but must be in writing if it is formal. The written notice should set out the nature of the grievance, and should be raised with a manager who is not the subject of the grievance (paragraph 31). The Guide says that in small firms where there is no alternative manager to raise the grievance with, the employer should make it clear that they will treat all grievances fairly and objectively even if the grievance is about something they may have said or done (p.44). 64. There is no separate section on investigating grievances. The first obligation on an employer is to hold a formal meeting with the employee without unreasonable delay (paragraph 32). At the meeting, consideration should be given to adjourning the meeting for any investigation that may be necessary (paragraph 33). 65. Paragraphs deal with the right to be accompanied and replicate the provisions relating to disciplinary hearings (above). 66. The grievance decision should be communicated in writing (paragraph 37). 67. Employees should appeal any grievance decision that they are unsatisfied with. The appeal should brought without unreasonable delay and should be in writing (paragraph 39). 68. There is no replication in this section of the requirement in disciplinary proceedings that the appeal hearing be ideally at an agreed time and place. The requirement for grievance appeals is only that the employer notifies the employee in writing of the time and place of the hearing (paragraph 40). 69. Paragraph 44 states that where there is an overlapping grievance and appeal (a very common occurrence), the disciplinary process may be temporarily suspended in order to deal with the grievance, but if the two proceedings are related it may be appropriate to deal with both issues concurrently. 70. Paragraph 45 makes it clear that the Code does not apply to grievances raised on behalf of two or more employees by a representative of a recognised trade union. Collective grievances of this sort should be handled in accordance with the 18

19 organisation s collective grievance process. There is no guidance as to what should happen if the organisation does not have such a process. 19