Updated Acas discipline and grievance guide: What's new for employers?

Author: Stephen Simpson

In February 2019, Acas made changes to its guide on discipline and grievances, which complements the "Acas code of practice on disciplinary and grievance procedures". We set out the key updates, in particular the amended guidance on workers seeking to postpone a disciplinary hearing because their preferred companion is unavailable.

Discipline and grievance: Acas guidance and code

Discipline and grievances at work: the Acas guide

Acas code of practice on disciplinary and grievance procedures

While "Discipline and grievances at work: the Acas guide" does not have statutory force, it is important because it expands on points in the "Acas code of practice on disciplinary and grievance procedures".

The Acas guide also provides more detailed advice on dealing with disciplinary and grievance situations that employers commonly face.

Unlike the Acas code, a breach of which can lead to tribunals adjusting compensation in relevant cases by up to 25%, tribunals are not required to have regard to the Acas guide when considering relevant cases.

However, the guide is important because tribunals are still likely to consider it when interpreting the Acas code.

Companions at hearings

What's new in the guidance?

Acas has updated its guidance on postponing a disciplinary hearing when a worker's chosen companion is not available. The changes take account of the important Employment Appeal Tribunal (EAT) decision in Talon Engineering Ltd v Smith [2018] IRLR 1104 EAT.

Employers may, however, wish to allow more time than this for a re-arranged meeting, particularly in cases that might result in dismissal. An employer must always act fairly in order to avoid a finding of unfair dismissal. Where there is a request to postpone a hearing for more than five days because a trade union representative or other companion is not available, it may be fair to allow the postponement if it does not cause unreasonable delay. The employer should consider the facts and decide what is fair and reasonable in the circumstances.

Page 26 of updated Acas guide

In Talon, the worker requested a postponement for a couple of weeks to allow her trade union representative, who was unavailable on the proposed date of the disciplinary hearing, to accompany her. The problem was that the hearing had already been delayed because of the worker's sick leave and holiday. The employer refused a further postponement.

The worker subsequently succeeded in her employment tribunal claim for unfair dismissal, which the EAT upheld. The EAT decided that, even if an employer complies with the statutory right to be accompanied (which allows a worker to propose an alternative time that is both reasonable and within five working days of the original hearing), a failure to postpone a hearing can still make a dismissal unfair.

The updated Acas guide makes it clear to employers that, in these circumstances, they may have to delay the disciplinary hearing for more than five days if this does not cause "unreasonable delay".

Importantly, the guidance also now recommends (on p.46) that employers take the same approach to grievance meetings that are connected to a potential dismissal. Acas gives the example of a grievance raised by a worker who complains that an ongoing disciplinary process that may result in their dismissal is unfair in some way.

What should employers do?

Talon has increased the uncertainty for employers faced with a worker seeking to delay a disciplinary hearing. In the past, employers faced with this common situation may have felt safe relying on the five-day timeframe for delaying a hearing under the right to be accompanied.

However, HR professionals have to think very carefully now before refusing to reschedule a disciplinary hearing to allow a particular companion to attend either a disciplinary hearing or grievance meeting connected to a potential dismissal.

This is a difficult balancing act: employers are not expected to delay hearings forever, particularly because it is common for workers facing disciplinary proceedings to use delaying tactics. But HR should now bear in mind both the right to be accompanied and Talon before refusing a postponement.


What's new in the guidance?

Acas has expanded the guide's section on suspensions. The guidance now places a greater emphasis on taking into account the impact on the employee.

Suspension can leave individuals feeling prejudged, demotivated and devalued. It should therefore only be used after very careful consideration. It should always be made clear that suspension is not an assumption of guilt and is not considered a disciplinary sanction.

Page 19 of updated Acas guide

Acas also highlights that:

  • employees should always receive their full pay and benefits during a period of suspension unless there is a clear contractual right for an employer to suspend without pay;
  • suspensions should be kept as brief as possible and reviewed regularly; and
  • the suspended employee should be kept informed of the progress of the investigation.

Overall, Acas is at pains to point out that suspensions should be used only in exceptional circumstances and most disciplinary situations do not require a suspension.

What should employers do?

Employers must not assume that they are automatically entitled to suspend an employee whatever the circumstances and just because they may have a contractual power to do so in the employee's contract of employment.

Before making a decision to suspend, employers should speak with the employee and consider all the relevant circumstances. For example, are there any reasonable alternatives to suspension, such as transferring an employee to another part of the business?

An over-zealous approach to suspension, which Acas highlights as a serious step to take against an employee, can be a breach of the implied duty of trust and confidence and result in a constructive dismissal claim.

Stress and grievances

What's new in the guidance?

The updated Acas guide makes clear how stressful a grievance process can be for everyone involved. This could be the complainant or someone else involved, such as an employee who is the subject of a complaint.

In some cases, it might be appropriate for an employer, with the agreement and involvement of the individual, to seek professional medical help or guidance as to how the grievance process can proceed fairly. If there are clear and repeated signs of distress, the employer should consider signposting the individual to an employee assistance programme, where one is available, or consider suggesting that the individual seeks advice from a GP.

Page 41 of updated Acas guide

According to Acas, there are various steps that employers can take to help individuals whose mental health is affected, including making adjustments to the grievance process.

What should employers do?

If someone discloses a mental health issue that could be a disability, the employer should make reasonable adjustments to the grievance procedure.

For example, the employer could allow an individual to be accompanied at a grievance meeting by someone who understands their condition, even if that person does not meet the statutory definition of a companion under the right to be accompanied. A friend or family member could be an appropriate companion in some cases.

Regular breaks during longer grievance meetings or holding meetings in a neutral venue away from the normal work environment may also help. The employee should also be given details of any other available help (for example from occupational health or an employee assistance programme).

Outcome of grievances

What's new in the guidance?

Acas's guidance now highlights good practice around keeping individuals other than the complainant in the loop. Acas gives the example of a grievance being about a fellow employee.

According to Acas, these individuals "should be informed of any aspect of the decision that affects them and the reasons for it".

The guide also recommends that employers tell the complainant who else will be told about the grievance outcome.

Bear in mind that actions taken to resolve a grievance may have an impact on other individuals. While confidentiality is of prime importance in handling any grievance, in some circumstances there may be other individuals who may need to know the outcome, or certain aspects of the outcome that will impact on them.

Page 48 of updated Acas guide

What should employers do?

Employers should make sure that someone who has had allegations made against them in the course of a grievance process is kept up to date.

It is good practice for employers to do this not only at the start of the process, but at the end as well. For example, it may be that an individual has been exonerated after a complaint in which they were implicated.

If there is a case to answer, disciplinary action against the individual may follow.

There may be circumstances in which the wider workforce needs to be updated, for example if there has been a change of policy across the organisation after a grievance.

However, as Acas says, confidentiality is still a prime consideration in handling any grievance. HR professionals need to think very carefully about what staff other than the complainant are told about a grievance.