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You are here: BAILII >> Databases >> United Kingdom Statutory Instruments >> The Employment Act 2002 (Dispute Resolution) Regulations 2004 No. 752 URL: http://www.bailii.org/uk/legis/num_reg/2004/20040752.html |
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Made | 12th March 2004 | ||
Coming into force | 1st October 2004 |
and a reference to a Schedule is a reference to a Schedule to the 2002 Act.
(2) In determining whether a meeting or written communication fulfils a requirement of Schedule 2, it is irrelevant whether the meeting or communication deals with any other matter (including a different matter required to be dealt with in a meeting or communication intended to fulfil a requirement of Schedule 2).
Application of dismissal and disciplinary procedures
3.
- (1) Subject to paragraph (2) and regulation 4, the standard dismissal and disciplinary procedure applies when an employer contemplates dismissing or taking relevant disciplinary action against an employee.
(2) Subject to regulation 4, the modified dismissal procedure applies in relation to a dismissal where -
but neither of the dismissal and disciplinary procedures applies in relation to such a dismissal where the employee presents a complaint relating to the dismissal to an employment tribunal at a time when the employer has not complied with paragraph 4 of Schedule 2.
Dismissals to which the dismissal and disciplinary procedures do not apply
4.
- (1) Neither of the dismissal and disciplinary procedures applies in relation to the dismissal of an employee where -
(d) the reason (or, if more than one, the principal reason) for the dismissal is that the employee took protected industrial action and the dismissal would be regarded, by virtue of section 238A(2) of the 1992 Act, as unfair for the purposes of Part 10 of the 1996 Act;
(e) the employer's business suddenly ceases to function, because of an event unforeseen by the employer, with the result that it is impractical for him to employ any employees;
(f) the reason (or, if more than one principal reason) for the dismissal is that the employee could not continue to work in the position which he held without contravention (either on his part or on that of his employer) of a duty or restriction imposed by or under any enactment; or
(g) the employee is one to whom a dismissal procedures agreement designated by an order under section 110 of the 1996 Act applies at the date of dismissal.
(2) For the purposes of paragraph (1) -
and an employer shall be regarded as offering to re-engage an employee if that employer, a successor of that employer or an associated employer of that employer offers to re-engage the employee, either in the job which he held immediately before the date of dismissal or in a different job which would be suitable in his case.
Circumstances in which parties are treated as complying with the dismissal and disciplinary procedures
5.
- (1) Where -
Application of the grievance procedures
6.
- (1) The grievance procedures apply, in accordance with the paragraphs (2) to (7) of this regulation, in relation to any grievance about action by the employer that could form the basis of a complaint by an employee to an employment tribunal under a jurisdiction listed in Schedule 3 or 4, or could do so if the action took place.
(2) Subject to paragraphs (3) to (7), the standard grievance procedure applies in relation to any such grievance.
(3) Subject to paragraphs (4) to (7), the modified grievance procedure applies in relation to a grievance where -
(c) the parties have agreed in writing in relation to the grievance, whether before, on or after that day, but after the employer became aware of the grievance, that the modified procedure should apply.
(4) Neither of the grievance procedures applies where -
(5) Neither of the grievance procedures applies where the grievance is that the employer has dismissed or is contemplating dismissing the employee.
(6) Neither of the grievance procedures applies where the grievance is that the employer has taken or is contemplating taking relevant disciplinary action against the employee unless one of the reasons for the grievance is a reason mentioned in regulation 7(1).
(7) Neither of the grievance procedures applies where regulation 11(1) applies.
Circumstances in which parties are treated as complying with the grievance procedures
7.
- (1) Where the grievance is that the employer has taken or is contemplating taking relevant disciplinary action against the employee and one of the reasons for the grievance is -
the parties shall be treated, subject to paragraph (2), as having complied with such of those paragraphs of Schedule 2 as have not been complied with.
(2) In a case where paragraph (1) applies and the requirements of paragraphs 7(1) to (3) of Schedule 2 have been complied with but the requirement in paragraph 7(4) of Schedule 2 has not, the employer shall be treated as having failed to comply with paragraph 7(4) unless he informs the employee in writing of his decision as to his response to the grievance.
9.
- (1) Where either of the grievance procedures is the applicable statutory procedure, the parties shall be treated as having complied with the requirements of the procedure if a person who is an appropriate representative of the employee having the grievance has -
(3) For the purposes of paragraph (2)(a) the terms "official", "recognised" and "collective bargaining" have the meanings given to them by, respectively, sections 119, 178(3) and 178(1) of the 1992 Act.
10.
Where either of the grievance procedures is the applicable statutory procedure but -
the parties shall be treated as having complied with the applicable statutory procedure.
General circumstances in which the statutory procedures do not apply or are treated as being complied with
11.
- (1) Where the circumstances specified in paragraph (3) apply and in consequence the employer or employee does not commence the procedure that would otherwise be the applicable statutory procedure (by complying with paragraph 1, 4, 6 or 9 of Schedule 2), the procedure does not apply.
(2) Where the applicable statutory procedure has been commenced, but the circumstances specified in paragraph (3) apply and in consequence a party does not comply with a subsequent requirement of the procedure, the parties shall be treated as having complied with the procedure.
(3) The circumstances referred to in paragraphs (1) and (2) are that -
(4) In paragraph (3)(b), "harassment" means conduct which has the purpose or effect of -
but conduct shall only be regarded as having that purpose or effect if, having regard to all the circumstances, including in particular the perception of the person who was the subject of the conduct, it should reasonably be considered as having that purpose or effect.
Failure to comply with the statutory procedures
12.
- (1) If either party fails to comply with a requirement of an applicable statutory procedure, including a general requirement contained in Part 3 of Schedule 2, then, subject to paragraph (2), the non-completion of the procedure shall be attributable to that party and neither party shall be under any obligation to comply with any further requirement of the procedure.
(2) Except as mentioned in paragraph (4), where the parties are to be treated as complying with the applicable statutory procedure, or any requirement of it, there is no failure to comply with the procedure or requirement.
(3) Notwithstanding that if regulation 11(1) applies the procedure that would otherwise be the applicable statutory procedure does not apply, where that regulation applies because the circumstances in sub-paragraph (a) or (b) of regulation 11(3) apply and it was the behaviour of one of the parties that resulted in those circumstances applying, that party shall be treated as if -
(4) In a case where regulation 11(2) applies in relation to a requirement of the applicable statutory procedure because the circumstances in sub-paragraph (a) or (b) of regulation 11(3) apply, and it was the behaviour of one of the parties that resulted in those circumstances applying, the fact that the requirement was not complied with shall be treated as being a failure, attributable to that party, to comply with a requirement of the procedure.
Failure to attend a meeting
13.
- (1) Without prejudice to regulation 11(2) and (3)(c), if it is not reasonably practicable for -
to attend a meeting organised in accordance with the applicable statutory procedure for a reason which was not foreseeable when the meeting was arranged, the employee or, as the case may be, employer shall not be treated as having failed to comply with that requirement of the procedure.
(2) In the circumstances set out in paragraph (1), the employer shall continue to be under the duty in the applicable statutory procedure to invite the employee to attend a meeting and, where the employee is exercising his rights under section 10 of the 1999 Act and the employee proposes an alternative time under subsection (4) of that section, the employer shall be under a duty to invite the employee to attend a meeting at that time.
(3) The duty to invite the employee to attend a meeting referred to in paragraph (2) shall cease if the employer has invited the employee to attend two meetings and paragraph (1) applied in relation to each of them.
(4) Where the duty in paragraph (2) has ceased as a result of paragraph (3), the parties shall be treated as having complied with the applicable statutory procedure.
Questions to obtain information not to constitute statement of grievance
14.
- (1) Where a person aggrieved questions a respondent under any of the provisions set out in paragraph (2), those questions shall not constitute a statement of grievance under paragraph 6 or 9 of Schedule 2.
(2) The provisions referred to in paragraph (1) are -
Extension of time limits
15.
- (1) Where a complaint is presented to an employment tribunal under a jurisdiction listed in Schedule 3 or 4 and -
(5) In this regulation "the normal time limit" means -
(b) in relation to claims brought under the Equal Pay Act 1970, the period ending on the date on or before which proceedings must be instituted in accordance with section 2(4) of that Act.
National security
16.
Where it would not be possible to comply with an applicable statutory procedure without disclosing information the disclosure of which would be contrary to the interests of national security, nothing in these Regulations requires either party to comply with that procedure.
Amendments to secondary legislation
17.
The statutory instruments referred to in this regulation shall be amended as follows -
(b) in the Race Relations (Questions and Replies) Order 1977[13], for paragraph (a) of article 5 there shall be substituted -
(c) in article 7 of the Employment Tribunals Extension of Jurisdiction (England and Wales) Order 1994[14], after paragraph (b) there shall be inserted -
(d) in article 7 of the Employment Tribunals Extension of Jurisdiction (Scotland) Order 1994[15], after paragraph (b) there shall be inserted -
(e) in regulation (2) of the Employment Protection (Continuity of Employment) Regulations 1996[16], the word "or" at the end of paragraph (d) shall be omitted and after paragraph (e) there shall be inserted -
(f) in regulation 30(2)(b) of the Working Time Regulations 1998[17], after paragraph (2) there shall be inserted -
(ii) in regulation 34, after paragraph (1) there shall be inserted -
(ii) in regulation 34, after paragraph (1) there shall be inserted -
Transitional Provisions
18.
These Regulations shall apply -
The Regulations also provide that the issuing of a discrimination questionnaire is not to constitute a statement of grievance (regulation 14) and for the situation when complying with the procedures would be contrary to the interests of national security (regulation 16). Regulation 17 amends certain other subordinate legislation. Regulation 18 contains transitional provisions.
A full Regulatory Impact Assessment of the effect that this instrument will have on the costs of business has been prepared and placed in the library of each House. This document can be obtained from Department of Trade and Industry, Bay UG97, 1 Victoria Street, London SW1H 0ET. It can also be downloaded from http://www.dti.gov.uk/access/ria/#employ.
[8] 1995 c. 50. Section 17A was inserted by S.I. 2003/1673, regulations 3(1) and 9(1); the new section replaced section 8 of the 1995 Act and contained amendments.back
[11] Section 7B was inserted by section 42 of the Employment Act 2002.back
© Crown copyright 2004