Judging by recent press stories, law firms are not practising what they preach to clients when it comes to employment rights. Whatever the reason, it is time for firms to shape up. On 1 October, statutory discipline/dismissal and grievance procedures were introduced. These have ramifications for the way firms deal with most employee issues.

The legislation, together with Department of Trade and Industry and ACAS guidance on how it should work, looks innocuous enough. Most well-advised employers will already be handling matters as required. This has lulled many into thinking the procedures will have limited impact. Think again.


The dismissal procedure applies to almost all dismissals and certain disciplinary action. This includes redundancies (unless collective consultation requirements apply). It also covers retirement in certain circumstances and the expiry of a fixed-term contract. Broadly, it involves writing to the employee with your issues, holding a meeting to discuss and giving him the right of appeal.


The grievance procedure applies to any grievance against an employer concerning, among other things, most forms of discrimination (with the curious exception of part-time or fixed-term working), a breach of contract, a deduction from wages, or the Working Time Regulations. Again, there is a three-step procedure: the employee makes the grievance in writing, a meeting is held to discuss, and the employee given a right of appeal.


The real sting is the sanctions for non-compliance – a dismissal will be automatically unfair and compensation awarded for any claim related to a grievance, dismissal or disciplinary matter must be uplifted by 10% and may be uplifted by up to 50%. The uplift is a penalty – it is not only applied to unfair dismissal compensation (which remains capped at £55,000), but also to uncapped discrimination awards and even a failure to pay contractual notice. Imagine the uplift on discrimination damages for a well-remunerated solicitor.


The procedures do not replace existing case law on handling employee issues. Even if the dismissal procedure is followed to the letter, the dismissal may still be unfair. In a redundancy situation, for example, you ought still to consult fully with affected employees.


Can a partner now have a word in the ear of a non-performing fee-earner who ‘resigns’ shortly after? Theoretically, you can where the fee-earner has less than one year’s service. But make sure you investigate the reason behind the poor performance – if the employee later alleges it was her supervisor harassing her (giving a potential discrimination claim for which there is no length-of-service requirement), it will be too late to rectify the lack of procedure and avoid the uplift.


The procedures are intended to keep disputes out of tribunals by resolving them via workplace processes, moving the costs to the employer in terms of management time away from fee earning. In reality, their complexity is likely to lead to more claims. The cautious approach, even from a commercial perspective, is to get into the habit of applying a procedure in every case.



Joanna Chatterton is a senior employment associate at City law firm Fox Williams