1st October 2004 saw the introduction of the statutory procedures for disciplinary, dismissal and grievance matters. The procedures were mandatory and the aim was to force employers and employees to discuss disputes in the workplace, ideally before a decision to dismiss or resign. The policy behind the procedures was a need to reduce the number of claims being presented to employment tribunals. This was because the number of claims had risen inexorably over the recent past with the result that the system was struggling to cope on both practical and financial levels.

At first glance, the statutory procedures appeared relatively straightforward. Both the disciplinary and dismissal and grievance procedures contained a three step procedure which involved setting out the dispute in writing, a meeting to discuss the dispute and an appeal stage if the employee was unhappy with the original decision. However, as always, the devil was in the detail. A failure on the part of the employer to follow any part of the disciplinary and dismissal procedure could render any dismissal automatically unfair with a sanction of an increase in compensation for the employee. A failure on the part of the employee to follow the grievance procedure could mean that the employee was unable to bring a claim at all before the tribunal. The upshot was that parties spent more time trying to ensure compliance with the procedures rather than resolving the actual dispute.

This was clearly unsatisfactory and therefore the government ordered that a review of the procedures should be undertaken. This resulted in The Gibbons Report which pulled no punches in its criticism of the regulations. It described them as “a classic case of good policy but inappropriately inflexible and prescriptive”. The report’s conclusion was that they should be removed altogether.

This therefore begs the question what will replace them? The report suggests that the mandatory procedures should be replaced by much more guidance on what generally fair procedures should contain. The report concluded that the need is not for prescriptive law but for measures to produce a culture change in the workplace so that there is an expectation of in-house dispute resolution. Easier said than done you may think and will this be achieved through legislation? Perhaps the single most important recommendation is that there should be an increase in the use of mediation at as early a stage as possible. This really will need a total shift in the mindset of both employers and employees.