The standard DDP requires the employer to:

The standard DDP applies when the employer is contemplating dismissing the employee (with some exceptions), or taking other "relevant disciplinary action" which is not a warning or paid suspension, for example, a demotion. This procedure should always be used at the final written warning or dismissal stage of a disciplinary process (where it may be unclear as to what the disciplinary outcome will be).

One of the biggest changes for employers is that "dismissal" in this context includes dismissal on non-disciplinary grounds, that is, individual redundancy, expiry of a fixed term contract, long term sickness dismissal and compulsory retirement below the age of 65 or the company's normal retirement age. Many employers will not currently provide for a meeting/appeal stage in the latter two cases, or the right to be accompanied at a redundancy consultation meeting. Employers will now have to ensure that they have policies in place to cover these situations.

The modified DDP will only apply where the employer has already dismissed the employee in circumstances in which it was reasonable to do so without investigating the circumstances. In practice, it will be rare that it will be fair to dismiss an employee instantly without conducting an investigation and allowing the employee to state his case. The modified DDP requires the employer to:

The new statutory definition of grievance is a complaint by an employee about action which his employer has taken or is contemplating taking in relation to him. This will include any action for which the employer is vicariously liable. The statutory GPs apply to any grievance about an action by the employer that could form the basis of a tribunal complaint under specified jurisdictions. This captures almost all forms of tribunal claims.

The standard GP comprises:

Under the modified GP:

Employees will need to initiate one of the statutory GPs before being able to lodge a subsequent tribunal claim. One of the biggest changes for employees will be in relation to constructive dismissals; commonly, employees will simply resign and present a tribunal application but the tribunal will now reject this unless the employee has sent a Step One letter to the employer

In practice, when an employee raises a complaint, employers will have to decide whether they need to follow the statutory procedure or not. Best practice will probably be to follow the statutory GP even where the employee raises the complaint verbally in the first instance.

The DTI guidance expects employers to use the standard GP in all cases where the employee is still in employment, and in most cases after termination of employment. However, parties may be reluctant to hold a meeting post-termination so it is likely the modified GP will be more heavily relied on in practice.

Significantly, the legislation expressly carves out whistleblowing disclosures, so that an employee will be able to choose whether or not they wish to make such a disclosure under the statutory GP or under the Public Interest Disclosure Act 1998 (1998 Act). It is hard to imagine that an employee would not want to take advantage of the protection afforded by the 1998 Act in these circumstances, although the trade-off will usually be the absence of the meeting stages under most employer whistleblowing policies.

There are significant consequences for failure to comply with the new regime.

Adjustment to awards. In the case of the DDP, failure by the employer to comply means that the dismissal will be deemed to be automatically unfair (subject to the qualifying period of 12 months' service) and the compensatory award will (save in exceptional circumstances) be increased or decreased by between 10% and 50%, depending on which party is in default (subject to the statutory cap which is currently £55,000). Conversely, even if the DDP has been followed to the letter, this will not automatically render any dismissal fair. In the case of the GP, an employee who has not sent a written letter to his employer setting out his grievance and waited at least 28 days will be prevented from lodging a tribunal claim and the parties also face equivalent adjustments to any subsequent awards as for the DDP.

Extension of time limits. Where a statutory procedure applies, the employee may in some circumstances rely on a three-month extension of time for bringing subsequent tribunal claims. In relation to the DDP, the extension will be triggered if the employee has reasonable grounds to believe a DDP is ongoing when the original time limit expired. To trigger the same extension in relation to the GP, the employee must, within the original time limit, either try to lodge a tribunal claim (having not followed the relevant statutory procedure) or submit the Step One letter. In the former case, the employee must then send the Step One letter within 28 days of the expiry of the original time limit. Effectively, this means that many employees will now have up to six months to bring tribunal proceedings.

The legislation provides for various situations in which the statutory procedures will not apply at all (for example, on a collective redundancy) or where parties are deemed to have complied. Where there is deemed compliance, it will be possible for the time limits for bringing a claim to be extended. This is not the case if the procedures do not apply at all.

In practice, it is unlikely that employers or employees will try to rely on an exemption or deemed compliance provision when deciding whether or not they need to begin or complete the relevant statutory procedure. These provisions are more likely to come into play when an employee has lodged a tribunal complaint and either party is trying to establish a defence as to why they did not comply with the relevant procedure.

One of the more complex areas of the new legislation is where there are overlapping statutory procedures. It is clear that, where the employee wishes to complain about the fact that he has been dismissed (other than constructive dismissal) or that some "other relevant disciplinary action" has been taken against him, his appropriate route of complaint will be at the appeal stage of the statutory DDP. However, if the complaint concerns the other relevant disciplinary action, and the employee believes that the taking of that action amounts to unlawful discrimination, or that the action was taken not on the grounds of his conduct or capability but for some other reason (for example, a personality clash with his manager), the statutory GP will apply. Where the complaint is raised before the appeal stage of the DDP, the parties will be deemed to have complied with the statutory GP.

Imagine, for example, that an employee has been transferred between departments because of an allegation of sexual harassment against a colleague. If he raises a grievance that he believes he has been moved because of his ethnic origin, and he raises this before the appeal stage of the DDP, the parties can discuss this issue at the appeal, rather than having to instigate a separate GP. In practice, however, where an allegation as serious as race discrimination has been raised, the employer may wish to adjourn the DDP and deal with the grievance separately.