ACAS Code of Practice - Discipline and Grievance
The long awaited abolition of the statutory 3-step process for discipline and grievance is now in place and many organisations will be breathing a sigh of relief that an otherwise fair dismissal can no longer be declared unfair for no other reason than because the statutory process had not been rigidly followed.
However, for those who have carefully studied the new ACAS Code of Practice, there are interesting developments and only time will tell how much emphasis the Employment Tribunals (ET) will put on these new elements. We must not forget that ETs are obliged to refer to the Code of Practice as an integral part of their deliberations and the failure of an employer to adhere to the Code of Practice can result in 25% uplifts to both the basic award and the compensation awarded to a successful applicant in an unfair dismissal case.
Interestingly, we do not yet know whether the uplift in a ‘statutory week’s wage’ from £350 to £380 will apply to ET basic awards or just to redundancy payments – or indeed when it will come into effect.
We are often asked of the Code of Practice is a legal document. Whilst not statutory, ACAS is obliged to provide the Code under s199 of the Trade Union and Labour Relations (Consolidation) Act 1992. The Code must be agreed by both Houses of Parliament prior to publication and must be considered by ETs as part of their deliberations – it is difficult to get closer to being a legal document without actually being one!
The heart of the new Code of Practice on discipline will hold few surprises for most HR professionals; in brief they are:
- A reasonable investigation carried out by someone different from the person who will be making any final decisions
- The employee must be informed of the problem
- The employee must be given the opportunity to defend themselves by
- Setting out their case
- Asking questions, presenting evidence and calling relevant witnesses
- Raising points about the information provided by management witnesses
- The employee has the right to be accompanied at the meeting/hearing
- Management should decide on appropriate action and inform the employee in writing setting out
- What changes in behaviour/performance are required
- The timescale within which the changes are required
- What will happen if the changes do not occur.
- Provide a right of appeal, which should be heard by someone different from the manager who heard the disciplinary hearing or undertook the investigation.
For grievances, the outline is:
- Where possible and practical, use informal processes first
- Provide the employer with a written outline of the grievance without undue delay
- Hold a formal meeting with the employee to discuss the grievance and adjourn for investigation if appropriate
- The employee has the right to be accompanied
- Management should decide on appropriate action and inform the employee in writing
- Provide a right of appeal, which should be heard by someone different from the manager who heard the disciplinary hearing or undertook the investigation.
It is other areas of the Code of Practice that are most interesting and may cause organisations to catch their breath.
Throughout the Code of Practice there is an emphasis on prompt action and words such as “without unreasonable delay” occur with some regularity. We think that ETs will consider an organisation’s speed of response to a problem as part of their deliberations. We know that most organisations deal with discipline within a reasonable timeframe but we have our doubts as to whether grievances are managed quite so efficiently.
The Code says, on page 3, “employees, and where appropriate, their representatives should be involved in the development of rules and procedures”. For organisations without an employee forum or a recognised trade union, this is going to be a departure from the norm of HR professionals writing policy and procedures and simply implementing them. Well run and managed employee fora provide an excellent sounding board and communication device for organisations and the Code offers an opportunity for organisations without employee representation to consider putting one in place.
The Code also says “It is also important to help employees and managers understand what the rules and procedures are, where they can be found and how they are to be used”.
Unpicking this sentence, we find that it means:
- Ensuring discipline and grievance is included in induction programmes and that employees know where to access both procedures and rules
- Ensuring managers are properly trained to implement the rules and procedures.
We think that an unfair dismissal claim that is successful because the manager involved was untrained may be an open invitation for an ET to uplift compensation by the 25% allowed by the Employment Act 2008.
Mediation is also mentioned throughout the Code of Practice as a means of potentially settling disputes, whether they be discipline or grievance, without recourse to formal procedures. Cullen Scholefield now offers mediation services.
The management of suspension in the case of disciplinary investigations warrants a mention in that the Code says it “should be as brief as possible, should be kept under review and it should be made clear that this suspension is not considered a disciplinary action”. Organisations should keep a clear audit trail of the decision making processes in relation to suspension up to and including re-integration programmes when the employee returns to work.
If organisations have not already done so, it is important that policies and procedures are reviewed in order to ensure a close fit with the Code of Practice.
Cullen Scholefield can help you by providing advice, guidance, mediation, policy review and training.
If you would like a Word version of this article or just like to chat to us please contact us.
