Changes to disciplinary and grievance procedures: Acas code and guide

Sanjeev Uppal of Steeles (Law) LLP continues a series of articles on changes to the law on disciplinary and grievance procedures with a look at the new Acas code of practice and guide, the obligations imposed on employers and employees and whether or not employers need to make changes to existing disciplinary and grievance procedures.

Introduction

The Employment Act 2008 will repeal the statutory dispute resolution procedures with effect from 6 April 2009. In their place will be a revised Acas code of practice, with which employers and employees will be expected to comply in disciplinary and grievance situations. There will also be a revised Acas guide.

The code, currently in draft form (Draft code of practice on disciplinary and grievance procedures (PDF format, 58K) (on the Acas website)) makes easy reading, running to only 10 pages and containing the core principles of the new regime. The code is issued under s.199 of the Trade Union and Labour Relations (Consolidation) Act 1992 and employment tribunals are required to take it into account when considering whether or not employers have acted reasonably in dismissing. Failure by a tribunal to take account of the code may give either party ground to appeal to the Employment Appeal Tribunal. Unreasonable failure by either party to follow the principles set out in the code could result in the tribunal increasing or decreasing the compensatory award by up to 25%, depending on which party is at fault.

The code does not apply to dismissals on the grounds of redundancy or the non-renewal of a fixed-term contract. It applies to disciplinary situations, which include misconduct and poor performance. Capability procedures to address performance issues should also follow the principles in the code. The code applies to employee grievances, which are employee concerns, problems or complaints raised with the employer.

The Acas guide, also still in draft form (Discipline and grievances at work: draft Acas guide (PDF format, 650K) (on the Acas website)), gives employers good practice advice for dealing with discipline and grievances in the workplace. However, tribunals are not required to have regard to the guide when considering whether or not an employer has acted reasonably.

General provisions

The code aims to help employers, employees and their representatives deal with disciplinary and grievance situations at work. It says that fairness and transparency are aided by the use of rules and procedures and that employees, and where appropriate their representatives, should be involved in the development of these rules and procedures. The code states that:

  • employers and employees should raise issues promptly and deal with issues without unreasonable delay;
  • employers and employees should act consistently;
  • employers should carry out the investigations necessary to establish the facts;
  • employers should inform employees of the problem and allow them to put their case;
  • employers should allow employees to be accompanied at formal disciplinary and grievance meetings; and
  • employers should allow employees to appeal any formal decisions.

The guide elaborates on the principles set out in the code. The guide recommends that, where possible, matters should be resolved informally. Employers should make every effort to engage in two-way discussions with employees. Criticism should be constructive and consideration should be given at any stage to whether or not the use of an independent mediator may be helpful.

Disciplinary matters

The code sets out a number of obligations in relation to disciplinary issues. For example:

  • The employer should notify the employee of the disciplinary case to answer and invite him or her to a meeting, in writing. The employee must be given sufficient information about the problem to prepare his or her case and he or she must be advised of the potential consequences.
  • The employer must hold a meeting with the employee to discuss the problem.
  • Where practicable, different people should carry out the investigation and the disciplinary hearing.
  • The employee should be given the right to be accompanied at the meeting. This code sets out the statutory right (under s.10 of the Employment Relations Act 1999) for employees to be accompanied by a fellow worker or trade union representative, at disciplinary hearings that could result in a formal warning, some other disciplinary action or the confirmation of either. The code states that employees have the right to make a reasonable request to be accompanied, and guidance is included on what amounts to a reasonable request. A request to be accompanied by a companion who would prejudice the hearing or who is from a remote geographical location would be considered unreasonable.
  • Any period of suspension with pay in misconduct cases should be as brief as possible and imposed only after careful consideration. It should be made clear that suspension is not an assumption of guilt.
  • Employees should "make every effort" to attend disciplinary meetings.
  • There must be a right of appeal against disciplinary decisions.
  • Employees who wish to appeal against disciplinary action and dismissals should do so in writing and specify the grounds of appeal.
  • Employers should notify employees of the outcome of appeals, in writing, as soon as possible.

The Acas guide contains advice for putting in place disciplinary policies and procedures and makes a number of recommendations about disciplinary procedures, including that they should:

  • be in writing;
  • be non-discriminatory;
  • provide for matters to be dealt with speedily;
  • say what levels of management have authority to take various forms of disciplinary action;
  • require management to investigate fully before disciplinary action is taken;
  • give employees the chance to have their say before a decision is reached; and
  • give employees the right of appeal.

The guide also contains advice for employers for putting in place disciplinary rules, which should be done in consultation with employees and appropriate representatives and those who will have responsibility for operating them.

Grievances

The code sets out requirements for employers and employees in relation to grievances.

  • If a grievance cannot be resolved informally, the employee should raise the matter formally and without unreasonable delay with a manager. The formal grievance should be put in writing and set out the nature of the complaint.
  • Once an employee has raised a grievance, the employer should hold a meeting with him or her to discuss the matter.
  • As with disciplinary hearings the employee should be given the right to be accompanied at a grievance hearing.
  • Employees must "make every effort" to attend grievance meetings.
  • The employer should decide on appropriate action.
  • The employee should be given a right of appeal against the employer's decision.
  • If the employee is unhappy with the employer's decision he or she should appeal. This must be done in writing and the grounds for appeal specified.
  • The employer should notify the employee of the outcome of the appeal, in writing, "without unreasonable delay".

The Acas guide elaborates further on the principles in the code and recommends that employers put in place grievance procedures to help clarify the process and to ensure that employees are aware of their rights. The guide recommends that grievances about matters not entirely within the control of the employer (for example client or customer relationships) should be treated in the same way as grievances relating to the employer.

Collective grievances

The code does not apply to collective grievances raised on behalf of two or more employees by a representative of a recognised trade union or other appropriate workplace representative. The code requires that these grievances be handled in accordance with the employer's collective grievance process.

Overlapping disciplinary and grievance issues

The code addresses the issue of overlapping disciplinary and grievance procedures by stating that: "Where an employee raises a grievance during a disciplinary process the disciplinary process may be temporarily suspended to deal with the grievance. Where the grievance and disciplinary cases are related it may be appropriate to deal with both issues concurrently."

Therefore, employers have a certain amount of discretion under the code to handle overlapping disciplinary and grievance situations in the most appropriate way, depending on the circumstances.

Changes to disciplinary and grievance procedures

Disciplinary and grievance policies and procedures should be checked to ascertain whether or not they require amendment to comply with the revised Acas code and guide. It is likely that most employers' policies and procedures, provided that they comply with current requirements under the statutory procedures and the existing Acas code of practice on disciplinary and grievance procedures (PDF format, 327K) (on the Acas website), will require little amendment. However, the following points are noteworthy:

  • Clarification on how collective grievances will be dealt with may be needed.
  • Provisions may need to be added to specify how overlapping disciplinary and grievance issues will be dealt with.
  • The code and the guide encourage the use of mediation in the workplace. This may need to be addressed in disciplinary and grievance policies and procedures.
  • Related policies and procedures should also be compliant with the revised code and guide. For example performance, capability and bullying and harassment policies and procedures may contain disciplinary and grievance provisions. These should be consistent with the revised disciplinary and grievance policies and procedures.

Next week's topic of the week article will be FAQs on changes to disciplinary and grievance procedures and will be published on 24 February.

Sanjeev Uppal is an assistant solicitor at Steeles (Law) LLP (suppal@steeleslaw.co.uk).

Further information on Steeles (Law) LLP can be accessed at www.steeleslaw.co.uk.