The ‘Ant’ and ‘Dec’ of the employment law world, Ian Smith and Dominic Regan told delegates attending the legal briefing at the Chartered Institute of Professional and Development’s (CIPD) annual conference and exhibition that the repeal of the failed statutory discipline and grievance procedures (D&G) is likely to take place in April 2009 but warned that a paper trail for dismissal is still the only defence.
Ian Smith, barrister; Clifford Chance professor of employment law at the Norwich law school and Dominic Regan, solicitor and trainer for the Ministry of Defence amongst others, told delegates that the demise of the D&G procedures is the topic of the moment.
The Gibbons Report, said Smith, arrived at the decision in March 2007 that the procedure should be removed. “Note there’s been no attempt to try and reform them, there’s no messing about but it won’t happen overnight it may take us into late 2008, if not 2009.”
The million dollar question, they said is what will replace these ‘loathed’ procedures. Smith said: “A key suggestion in the report is that the procedures should be replaced by much more guidance on what generally fair procedures should contain.” In essence he said, they could just ‘beef up’ the ACAS Code of Practice.
It is HR’s territory, he noted, to act out perhaps the most important single recommendation to “increase the use of mediation at as early a stage as possible in a workplace dispute.”
On harassment and stress, Regan told delegates that, “Stress cases are almost impossible to win.” Pointing to the importance of the House of Lords decision in Majrowski v Guys and St. Thomas’ NHS Trust the worry now is that the Act allows six years to bring a claim.
The problem with harassment, said Regan is that there is no one definition in the act but he said, according to the statute harassment has to occur on more than one occasion to be proved. “This is important. HR has to nip it in the bud immediately.”
“There is a fine line between getting a person to do their job and calls of stress. You have to avoid the nightmare scenario of one manager riding them all the time as happened in the Majrowski case. You need a paper trail to make it official,” warned Smith.
