Disciplinary procedures and contract

We are negotiating a new disciplinary and grievance procedure. We think there might be an advantage in having it incorporated into our contracts, so that we could enforce its terms, if necessary, using contract law. Our employer is reluctant to do this on the basis that it ties the company in to always following the procedure or risking a breach of contract claim. They say that it should be enough that the tribunals can take account of whether the procedure has been followed when considering unfair dismissal claims. Is it worth us sticking out to try to win incorporation?

The Employment Appeal Tribunal (EAT) has held in one case that even where there was no grievance procedure the tribunals could imply that there was one. A failure to provide ways of dealing with a grievance could therefore amount to a breach of contract, entitling the employee to resign and claim constructive dismissal. When the Employment Act 2002 comes into force later this year employers will be required to have a disciplinary and grievance procedure. However, as the draft regulations currently stand, this procedure is not contractual unless the parties wish it to be.

* More information: Labour Research, April 2002