On Monday, 6th April 2009, the new “ACAS Statutory Code of Practice on Discipline and Grievance” replaced the statutory procedure under the Employment Act 2002.
The Code sets out “principles for handling disciplinary and grievance situations in the workplace”.
How does this affect you?
• If the Code is not followed an Employment Tribunal will measure a case by the guidance given in the Code and has the power to adjust an award by up to 25% for an unreasonable failure to comply with the provisions of the Code. This means:
An employer’s failure (in relation to a dismissal or a disciplinary matter) can mean an increase of an award;
An employee’s failure (in relation to a grievance) can mean a reduction of an award.
This is a change from the old rule where such a failure could trigger an adjustment of between 10% and 50%,
• An employer’s failure to follow the Code does not now mean that a dismissal is automatically unfair, as was the case up to the 6th April 2009. However, if an employer fails to act in accordance with the Code it is likely (though not certain) that a tribunal will make a finding of unfair dismissal
• The overall principle is FAIRNESS
In short, these are the stated elements of fairness according to the ACAS Code:
• Act promptly
• Act consistently
• Carry out an investigation into the facts
• Inform the employee of the facts relied on
• Allow the employee to put his case
• Tell the employee he has a right to be accompanied
• Allow him to appeal
This is only a sketch of the new regime. There is more guidance in the Code and there are ambiguities which Tribunals will have to grapple with.
We advise:
1. Read the Code and keep a copy available, to be followed whenever a disciplinary matter or grievance raises its ugly head;
2. read also the more detailed, supplementary guidance on best practice, also published by ACAS;
3. If you have written disciplinary/grievance rules and procedures, make sure they are available to your employees. If you do not have anything in writing, develop rules and procedures (preferably in consultation with your employees);
4. you may be tempted not to follow the Code if an employee has less than one year’s service. This may be fine for an unfair dismissal claim but not where for instance the claim is for breach of contract or sex discrimination where such time limits do not apply;
5. the Code does not apply to redundancies (but it does to claims for redundancy payments), nor to the non-renewal of fixed term contracts. Nevertheless, you should always follow a fair procedure and consultation should always take place;
6. ideally, (although this may not be possible if you are a small employer), ensure that the person investigating the facts, the person doing the interviews, and the person conducting an appeal, are different people;
7. make sure you keep a full contemporaneous note of all discussions and a file of all relevant correspondence, statements etc.
Please note that if a grievance has already been notified to you and you have started the old statutory procedure, or you have dismissed or taken disciplinary action against someone before the 6th April, or you are dealing with a disciplinary matter by following the first steps of the old statutory procedure, the old procedures may still apply. These transitional rules are complicated so you should seek legal advice.
If you would like further advice about the new disciplinary dismissal and grievance regime, or any other aspect of employment law, please contact:
Michael Freeland
Email: mf@haroldmichelmore.co.uk
Tel: 01626 883508
Fax: 01626 883500
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© Harold Michelmore & Co 2009
Please note that the information and advice in this Note is provided for general guidance only. We believe it is accurate and up to date, but you must seek personal advice on any specific case or matter. We cannot accept liability for your reliance only on information or advice in this note. |
