Client Login

Employment Law Services Ltd

The New Rules on Disciplinary & Grievance procedures

5th May 2009

On the 6th April 2009 a new ACAS Code of Practice on Disciplinary and Grievances Procedures (the Code) came into force. Accompanying the Code is a revised set of guidance. The Code in effect replaces the Statutory Disciplinary, Dismissal and Grievance Procedures which were abolished on 6th April 2009. Any disciplinary action, dismissal or grievance that commence after the 6th April 2009 have to follow the new guidelines.

The Statutory Dismissal and Grievance Procedures had operated since 2004. While appearing to be simple and straightforward, they produced a great deal of confusion for employers, employees, and Employment Tribunals. This was significant because a failure to use these procedures correctly could result in a dismissal being “automatically unfair”, with increases in compensation of up to 50%. For an employee, if he or he failed to implement the Statutory Grievance Procedure, the employee was prevented from pursuing that issue in an Employment Tribunal.

Who does the new Code apply to?

The new procedures apply to all employers, irrespective of the size of business or number of employees that are employed. The procedures only apply to “employees”, so do not cover the self-employed, contractors, or business partners.

Status of the Code.

The ACAS Code of Practice is NOT legally binding. However, employers really are required to follow these procedures, as the Employment Tribunal has the power to increase, or reduce, any award of compensation by up to 25% if either the employer or employee “unreasonably” fails to follow them.

What does the Disciplinary & Dismissal Procedure Say?

The Code recommends that employers should have specific and clear written disciplinary procedures. Naturally we recommend that employers have written disciplinary procedures in any event. The Code states that it is important that employees and managers understand what rules and procedures are to be used, and how they are to be used. This indicates that managers should have some degree of training in the use of disciplinary procedures.

The Code states that issues should be addressed promptly and consistently. Employers are required to carry out any necessary investigation to establish the facts. The employer must inform the employee of the basis of the particular problem. There should be a meeting to discuss the problem, and the employee must be notified beforehand of the right to be accompanied at the disciplinary meeting. Following the decision, the employee must be informed of the right to appeal.

During each disciplinary meeting the employee should be given the opportunity to raise questions. Employees must be allowed to appeal against any sanction under every stage of the disciplinary procedure.

Does the Disciplinary & Dismissal Procedure cover more than “misconduct”?

The Code covers misconduct and poor performance-related proceedings. It does not cover redundancy dismissals-the rules and fair procedures for which have been the subject of a significant amount of guidance from court cases over many years. (See Redundancy Fact Sheet)

What happens if the employee fails to attend a disciplinary meeting?

The Code says that where an employee is “persistently unable or unwilling to attend” a disciplinary meeting “without good cause”, then the employer is entitled to make a decision on the evidence available. Clearly this indicates that some leniency must be shown towards employees that are unable to attend due to illness. There may well be litigation on the interpretation of this particular issue; but we believe that the Employment Tribunals will try to reach a practical solution between the employee’s wish to wait to resolve matters until healthy to do so, and the employer’s need to manage its procedures fairly but promptly.

What does the Code say about Grievances?

The Code encourages employees to deal with grievances informally if possible. However, if an informal approach has been unsuccessful, the employee is required to raise the grievance in writing if he/she wishes to pursue it any further. This means that if it is to be pursued formally, a grievance must always be in writing (avoiding the confusion over this issue within the old Statutory Disciplinary Procedure).

The employee should set out the nature of the grievance. Once this has been done the employer must arrange a meeting to discuss the grievance. The employee has the right to be accompanied to the grievance meeting. Obviously after the meeting the employer must confirm the outcome in writing. The employee must be given the right to appeal if dissatisfied with the outcome of the grievance. Grievance meetings should be adjourned if it becomes apparent that further investigation is required.

Any request for an appeal must be made in writing and the appeal must be considered in a further meeting, and a final decision should be given in writing without any unreasonable delay.

What happens if an employee raises a grievance during the disciplinary process?

It is common for an employee to raise grievances during the course of disciplinary action being taken against them. Such grievances may cover complaints about the procedure or background of the disciplinary action against them. The Code indicates that employers can decide if they want to suspend the disciplinary process in that situation in order to investigate the grievance or, if the issues are related, deal with them both concurrently.

What is the effect of the new grievance procedure on tribunal claims?

Under the old Statutory Grievance Procedures, employees were prevented from bringing most claims against their employers (such as discrimination claims, and constructive dismissal claims) if they had not raised their complaints with their employer under the Statutory Grievance procedures. This restriction no longer applies. However, it is likely that the Employment Tribunals will penalise the employee (by reducing the compensation) if a grievance is not raised before the matter is pursued in an Employment Tribunal.

What is the effect of the Code on my business?

The Code sets out the standards by which Employment Tribunals will assess the procedural fairness of all levels of disciplinary action (including dismissal), and the conduct of grievances. It is essential that employers have a clear understanding of these standards, and that they implement them.

The failure to implement the procedures properly may not result in dismissals being treated as “automatically” unfair anymore, but may result in the financial penalty of having to pay an up lift of up to 25% in any award of compensation. We recommend that employers take the opportunity to review, and update, their Disciplinary and Grievance Procedures (see our Employment Documents-Disciplinary Procedure and Grievance Procedure).

If you require further information or advice on any of the matters raised in this article, please do not hesitate to contact us.

Advanced Site Search