Revised Discipline and Grievance Acas Code of Practice
01 April 2009
Under the new Acas Code of Practice, tribunals will be able to use their discretion to a much greater extent than currently, and a dismissal will no longer be automatically unfair due to a lapse in procedure.
As mentioned in our January 2009 newsletter the revised Acas Code of Practice will come into force on 6 April 2009.
This is a welcome development for many employers who have fallen foul of the headache involved in following the rigid statutory 3 step process for disciplinary, grievance and dismissal procedures. The idea of the change is for employers and employees to try to deal with problems at work more flexibly and to resolve them at an early stage and in a way that suits the situation best with less emphasis on the mechanics of how to manage disciplinary issues, grievances and dismissals.
Under the new Acas Code of Practice, tribunals will be able to use their discretion to a much greater extent than currently, and a dismissal will no longer be automatically unfair due to a lapse in procedure.
Whilst it will not now be compulsory to follow the new Acas Code from this date if an employer departs from its provision it will make it harder to defend an unfair dismissal claim at an Employment Tribunal and it will be up to the Employment Tribunal to decide whether a party acted reasonably or not and they will have the authority to adjust any compensation, up or down, by up to 25% and this will now apply to an employee as well as an employer.
Under the new code Acas have set out a number of principles to follow:
- Raise and deal with issues promptly.
- Do not unreasonably delay meetings, decisions or confirmation of those decisions
- Always act consistently
- Establish the facts of the case by carrying out necessary investigations
- Inform employees of the problem and possible consequences to enable them to prepare for the disciplinary hearing, given them copies of any written evidence which is to be relied upon and give them the opportunity to put their case forward before any decisions are made
- Allow employees to be accompanied to formal disciplinary/grievance meetings
- Allow employees to appeal against any formal decision made
We have always advocated following these principles as best practice and would still advise employers to follow the 3 step process regardless of the length of service of an employee and the Acas code also recommends that at least these three steps are followed in the majority of cases anyway.
In your disciplinary procedure we advise that you should always have the informal stage which is usually referred to as a counselling stage and this usually resolves issues. This stage is a precursor to any formal action and it is also seen as the reasonable behaviour that is required of an employer handling disputes.
Acas defines disciplinary situations as those that include misconduct and/or poor performance on the part of the employee, but of course there are also other reasons such as breach of contract and some other substantial reason. If you have a separate capability procedure you can address any performance issues under this but you must still follow the principles of the new code.
In the case of grievances only:
- The employee should let you know the nature of their grievance
- Arrange a formal meeting to discuss the grievance and both parties should make every effort to attend this meeting
- Decide on appropriate action, and communicate this to the employee in writing
- Allow the employee to take the grievance further if it is not resolved.
Remember that if an employee raises a grievance during a disciplinary process, which is very common, the disciplinary process may be suspended in order to deal with the grievance. If the two are related it may be appropriate to deal with both at once.
The above applies for any event that occurs on or after 6 April and any issues before that date must follow the old statutory procedures.
However, the new code does not apply to either collective grievances raised by a workplace representative such as a trade union, or dismissals due to redundancy or the non-renewal of fixed term contracts.
This change means that you should review your current disciplinary and grievances policies and procedures to ensure they follow the new code and to ensure they are easy to understand and apply. Please note that all retained clients of HR Solutions will have this provided as a matter of course.
For non retained clients HR Solutions are offering a free review of your existing policy and advice on any amendments to ensure it is in line with the new changes. Alternatively, you can download the new code from the Acas website.