ACAS code of practice
Out with the old, in with the older!
Employers bid farewell to the statutory disciplinary and grievance procedures and are now required to comply with the Acas Code of Practice. This guide summarises the main points of the Code.
Consequence of failure
A failure to follow the Code does not in itself lead to automatic unfair dismissal, as a breach of the statutory procedures did. However, Employment Tribunals will take the Code into account when deciding on the fairness of a dismissal.
Compensation adjustment
Awards of compensation will still be able to be adjusted for failure to follow the Code but the maximum uplift / reduction will now be limited to 25%.
New disciplinary procedures
Application
The Code applies to misconduct and poor performance dismissals but not redundancies or the non-renewal of a fixed term contract.
The basic principles of a fair procedure remain:
investigate, notify, meet, decide and inform, right of appeal.
Investigation
Employer should carry out necessary investigation of potential disciplinary matters without unreasonable delay. In cases of misconduct, it is advisable to have different people carry out the investigation and disciplinary hearing. There is no statutory right to be accompanied at an investigatory meeting but employers may permit this under their own procedure.
Any period of suspension should be as short as possible.
Notification
The employee must be notified in writing about the alleged misconduct or poor performance and its possible consequences to allow him/her to answer the case against them. The notification should usually be accompanied by copies of any written evidence and details of the time, date and venue of the meeting and the employee’s right to be accompanied at the meeting.
Meeting
The meeting should be held without unreasonable delay. At the meeting the employer should describe the complaint made against the employee and explain the evidence gathered.
Employees should be given the right to be accompanied by a companion. The companion may be a fellow worker, trade union representative or an official employed by a trade union. In addition, employees should be given the opportunity to set out their case, answer any allegations made, be given a reasonable opportunity to ask questions, and be given the opportunity to call witnesses.
Where an employee is persistently unable or unwilling to attend a disciplinary meeting without good cause a decision should be made on the evidence available to the employer.
Decision
The employer must decide what action is justified and inform the employee accordingly in writing.
In cases of misconduct or where the employee is found to be under-performing, it is usual to give the employee a verbal or written warning. Any further acts of misconduct or failure to improve performance would normally result in a final written warning. However, in cases where the employee’s misconduct is substantially serious or performance is substantially unsatisfactory, the employer may decide to issue a final written warning as the first stage.
The warning should set out the nature of the misconduct or poor performance and specify a period within which improvement must occur. The employee should be informed of the duration of the warning and the consequences of any further misconduct or failure to improve performance within the timescale.
Any action to dismiss should only be taken by a person with authority to do so. The employee should be informed of the reasons for the dismissal, the termination date, the notice period and their right of appeal.
In cases of gross misconduct, dismissal should not take place until a fair disciplinary process has been followed. Examples of gross misconduct should be set out in the disciplinary procedure.
Right to appeal
The employee should be notified of his/her right to appeal. If the employee wishes to appeal, he/she should set out the grounds of his/her appeal in writing.
The appeal should be dealt with impartially and where possible by a manager who has not previously been involved in the case.
The employee has a statutory right to be accompanied at appeal hearings.
The employee should be informed in writing of the outcome of the appeal hearing as soon as possible.
Time limits
There will no longer be an extension of time for submitting a claim to the Tribunal even when an appeal is ongoing.
Grievance procedure
Employees are encouraged to seek to resolve grievances (i.e. concerns, problems or complaints) informally. However, if that is not possible, they should follow the formal process which still contains the basic principles of notify, meet, decide and inform, and right of appeal.
Notification
An employee should notify, without unreasonable delay, a manager who is not the subject of the grievance, of the grievance in writing setting out the nature of the grievance.
Meeting
In a response to a grievance from an employee, employers should arrange for a meeting to be held without unreasonable delay.
Employees should be notified of their statutory right to be accompanied by a companion at a grievance meeting. The companion’s role is as described above.
All parties, including the employer, employee and their companion, should make every effort to attend the meeting. Employees should be given the opportunity to explain their grievance and put forward their thoughts on how it should be resolved. Employers should consider adjourning a meeting if it is felt that there is a need for investigation.
Decision
Once the meeting and any investigations have been concluded, the employer must decide on what action, if any, to take. The decision should be communicated to the employee in writing without unreasonable delay and, where appropriate, the employer should set out the action he intends to take to resolve the grievance. The employee should be informed of their right to appeal if they disagree with the action taken.
Appeal
If an employee feels that their grievance has not been resolved satisfactorily, they should lodge an appeal and advise the employer of the grounds of appeal in writing without unreasonable delay.
The appeal should be dealt with impartially and where possible by a manager who has not previously been involved in the case.
The employer should hear the appeal without unreasonable delay and notify the employee of the time and place of the meeting.
Employees have a statutory right to be accompanied at any appeal hearing.
The employer must notify the employee in writing without unreasonable delay of the outcome of the appeal.
Cross-over of grievance and disciplinary matters
In circumstances where an employee raises a grievance during a disciplinary process, the employer may temporarily suspend the disciplinary procedure in order to deal with the grievance. However, in situations where the grievance and disciplinary are related, the employer may feel that it is appropriate to deal with both issues simultaneously.
Effect of not raising a grievance
Employees will no longer be barred from submitting claims to a Tribunal if they do not raise a grievance.
Time limits
Submitting a grievance will no longer automatically extend the time limits for submitting a claim to the Tribunal.