CAUTION: The notes below are retained because the repealed 2002/2004 rules continue to apply in some circumstances, possibly through to 2010 and even beyond (see notes at Disciplinary and Grievance Procedures - 2009 changes/transitional provisions ).

For notes on the replacement rules which came into effect on 6th April 2009 go to Disciplinary and Grievance Procedures - 2009 changes .

Important preliminary.

The Employment Act 2002 (Dispute Resolution) Regulations 2004 SI 2004/752 (with which this note is primarily concerned) have not worked well in practice. The government ordered a complete review at end 2006 and the 2002/2204 rules are completely scrapped and replaced by a semi-voluntary Code of Practice with effect from 6th April 2009 (subject to transitional provisions) - see notes at Disciplinary and Grievance Procedures - 2009 changes

As from 1st October 2004, the Employment Act 2002 (Dispute Resolution) Regulations 2004 SI 2004/752 require employers and employees to comply with new statutory rules to attempt to resolve disputes without recourse to the employment tribunal (see notes at Disciplinary procedures/General and Code of Practice ).

It is not always clear whether the "dismissal and disciplinary procedures" or the "grievance procedures" apply, or both. This is important for several reasons, one of the most fundamental being that an employment tribunal will not have jurisdiction to consider an employee's claim if she has not put in a statutory grievance when the law requires her to do so (as to which see notes at Disciplinary procedures/2004 new regulations ).

Chapter 6 of the BERR (formerly DTI) guidance to the 2004 disciplinary and grievance procedure rules is entitled "Dealing with 'overlapping' disputes" and discusses resulting problems and how they are resolved. The guidance explains that, in addition to the obvious example of multiple disciplinary and/or grievance issues falling to be considered at the same time, a typical example "of 'overlapping' disciplinary and grievance issues" is where an employer takes disciplinary action against an employee which prompts the employee to raise a grievance, either about that action or about something else, or to resign and complain of constructive dismissal .

With one pseudo-exception the statutory grievance procedure does not apply where the grievance is that the employer has dismissed or is contemplating dismissing the employee (Employment Act 2002 (Dispute Resolution) Regulations 2004 SI 2004/752 regs 6 and 7). In that situation the statutory disciplinary and dismissal procedures apply so the regulations ensure that they and they only apply and that the statutory grievance procedures do not apply. The one exception is where the dismissal is not an actual dismissal at all but is constructive dismissal .

Recent cases decided after the BERR/DTI guidance noted above was issued in 2004 show that if the employee is dismissed in circumstances which enable her to bring a tribunal claim other than for unfair dismissal (such as a discrimination claim) the rules concerning statutory grievance procedures do not apply.

Where relevant the rules allow the statutory procedures to be satisfied in a single process by both parties, providing that the employee sends the employer the "Step 1 statement of grievance" before the appeal meeting stage of the dismissal and disciplinary procedures (see notes at Grievance procedures and Disciplinary procedures/General and Code of Practice ). This allows the parties to combine both the disciplinary and grievance aspects of the dispute and to address both at the meeting stage under the dismissal and disciplinary procedures.

If the employee serves the Step 1 statement of grievance at or after the appeal stage of the dismissal and disciplinary procedures has been completed, they will not have complied with the statutory grievance procedures and will have to commence the statutory grievance procedures from the beginning .

There is a useful Dispute Resolution section on the DTI website called "RESOLVING DISPUTES - A new approach in the workplace".

For general notes Disciplinary procedures/General and Code of Practice and/or Grievance procedures and/or Acts of Parliament etc/Employment Act 2002