| Commentary

(2) Contractual status

| Commentary

(2)     Contractual status

The second point meriting mention is the contractual status of disciplinary and grievance procedures. Many employers try to avoid creating a contractual obligation to apply their procedures, typically by not incorporating them into the contractual documents, or stating that they are non-contractual. Two advantages are thought to flow from this. First, as with other policies and procedures which are non-contractual, it is considerably easier for the employer to replace or make adjustments to the procedures without the consent of employees or their representatives. Second, it reduces the risk of a claim for damages based upon a breach of the procedures. This is particularly important in relation to employees who have less than the qualifying period of service for unfair dismissal and who might seek to argue, as an alternative, that but for the non-application of the procedures to them or, alternatively, some failure to apply the detail of the procedure to their particular case, they would have continued in employment for a further period of time with a consequent (advantageous) effect on the damages they may be in a position to claim.

The question when disciplinary procedures are to be regarded

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