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Are you ready for the new ACAS Code of Practice on Discipline and Grievances?

29th December 2008

In November 2008 ACAS published the latest draft of the new ACAS Code of Practice on Discipline and Grievances. This draft has been approved by the relevant government department.

The Code will replace the Statutory Disciplinary and Dismissal Procedure, and the Statutory Grievance Procedure. The statutory procedures, which have been in force since October 2004, have resulted in a deluge of satellite litigation in the Employment Tribunals and appeal courts, and proved unpopular with both employers and individuals. In addition they have received some high-profile criticism from the appeal courts.

Assuming that the draft Code is not altered by Parliament again, it will come into force on the 6th April 2009. So, employers need to ensure that their policies and procedures on discipline and grievances meet the requirements of the Code as a matter of urgency.

Disciplinary and Dismissal procedures  

There are a number of broad similarities between the old Statutory Discipline and Dismissal Procedure and the new Code of Practice, such as the requirement on the employer to put the allegations to the employee in writing, to hold a meeting to discuss the allegations, and to allow the employee to appeal against the decision following the initial meeting. However, there are a number of important differences too, egs:-

1. There will be an obligation on employers to notify the employee of the right to be accompanied at the disciplinary hearing.

2. Any appeal must be in writing, AND state the grounds of the appeal.

3. The Code covers disciplinary warnings short of dismissal which (rather oddly in view of the name given to the Statutory procedures) did not apply to the Statutory procedures it replaces.

4. The Code does NOT cover redundancies.

5. The Code emphasises the procedural division between the investigation and disciplinary action.

6. The Code imposes an obligation to follow a fair procedure before dismissing an employee for gross-misconduct (in place of the “modified” shortened procedure that is part of the Statutory Disciplinary and Dismissal procedures).

Grievance procedures

In the context of grievances the new Code sets out a more strict and demanding requirement on individuals to trigger the grievance procedure than applied under the Statutory Grievance procedure.

The Statutory Grievance procedure did not really allow for any truly informal approach to be adopted with any complaint from an individual. It effectively forced the employer to raise the status of any complaint to that of a formal grievance- whether or not that was appropriate.

The new Code requires individuals to raise any grievance in writing without unreasonable delay, setting out the nature of the grievance. It has always been good practice to require an individual to put his/her grievance in writing and to set out the grounds of the grievance in writing, and the absence of this from the Statutory procedure has caused all manner of problems for employers. 

For individuals, a significant benefit of the system that comes into force with the new Code is the fact there will no longer be an obligation to raise a grievance in respect of any allegation of discrimination (including harassment) before being able to pursue that complaint in an Employment Tribunal (though a failure to do so may result in a reduction in any compensation awarded by an Employment Tribunal to the individual). This obligation has covered practically every type of unlawful discrimination, and frankly has simply caused a delay in sorting out such problems instead of producing an environment in which they can be resolved more speedily.

Effects of non-compliance on awards for compensation 

Non-compliance with the provisions of the new Code can be penalised by the Employment Tribunal ordering an increase, or decrease, in any compensation by up to 25%- rather less that the maximum of 50 % under the Statutory procedures.

Action to be taken

1. Employers should examine their disciplinary and grievance procedures as a matter of urgency, to ensure that they comply with the requirements of the new Code of practice.

We can assist you reviewing your procedures, and/or ensuring that the procedures comply with the requirements of the new Code.

2. Employers should ensure that their managerial staff are trained, and familiar with the provisions of the new Code of Practice.

3. Employers need to ensure that they have appropriate related policies, such as any dealing with redundancies, or harassment and bullying.

For further help or assistance and advice on these matters please contact us, or see our Employment Documents section of the website.

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