ACAS review the use of the Code of Practice on Disciplinary and Grievance procedures

A research paper has recently been produced by ACAS, evaluating the Code of Practice on Disciplinary and Grievance Procedures. The Code is treated by the Employment Tribunals as the benchmark of good practice. It will be relevant whenever the Employment Tribunal has to consider the fairness of a dismissal and the handling of any grievance by an employer. The Code is therefore an important guide to the handling of these procedures.

The current Code came into effect when the statutory dispute resolution procedures (a legally enforceable set of procedures dealing with disciplinary and grievances procedures) was abolished in 2009. The aim of those statutory procedures had been good- to establish a set of procedures that employers had to follow, which if followed correctly would provide them with protection from claims of "procedural"unfair dismissal claims. The law established that if an employer failed to carry out the statutory procedure there would be an automatically unfair dismissal. The intent had been that this would make it easier for employers and individuals to operate the correct procedures and to understand the implications of a failure to operate them. However, as predicted by many practising employment lawyers, those procedures simply resulted in extensive litigation on the interpretation and implementation of the procedures, causing additional confusion to both employers and individuals.

The abolition of the statutory procedures and their replacement by the new ACAS Code of Practice saw a return to the approach adopted by the Employment Tribunals prior to 2004, as the Code places less emphasis on the mechanics of how to manage disciplinaries, grievances, and dismissals, instead setting out broader guidelines with flexibility for the parties to resolve their problems at an earlier stage. The Code has been in operation approximately two years, long enough to begin to assess its impact.



The research carried out by ACAS involved analysis of interviews with employers, employee representatives, and employees to assess the use of the Code, the impact of the Code and the degree to which it is correctly understood. The research found that there have been both positive and negative consequences of the Code. 

On the positive side the research indicated that:

 

1. Generally HR staff and line managers considered the Code made Employment Tribunals fairer for employers as they could no longer be "struck down" for failing to follow exacting and specific procedures,

2. The repeal of the statutory grievance procedures had resulted ina decrease in the number of grievances submitted, as there was no longer a need to file every potential relevant grievance in case a claim progressed to the Employment  Tribunal,

3. Organisations with policies revised inline with the Code reported an increased emphasis on prompt and early internal resolution of problems before having to resort to a formal grievance procedure.

On the negative side the research indicated that: 

1. Uncertainty about the legal status of the Code and how it may be interpreted by the Employment Tribunals particularly in dealing with the principles of "fairness" and "reasonableness" has increased the worry about Tribunal claims for some employers,

2. While there were high levels of awareness of the Code among HR professionals and employee representatives, this was inconsistent, with awareness being lowest among small employers and employers with less formalised HR functions,

3. Some of those that responded saw the Code as "weakening" the position of the employee by removing the obligation on employers to follow set processes contained in the statutory procedures.

It is our view that the research matches our general observations on these issues. In particular there remains a broad lack of awareness of the Code among smaller employers. There are many reasons for this. We often hear employers say that they have never had any problems before, so did not know what to do when they received a grievance from an employee. We also know that most employers will be much more focused on the work of their business than the rights and wrongs of dealing with staff problems. There is then the fact that employers will often say that nobody tells them about these procedures (meaning that there is no regular information provided to them by Government as and when a Code is introduced). Other smaller employers say that they do not need formal procedures as these things are dealt with informally. Small employers remain vulnerable so long as they fail to introduce and implement proper procedures, following the Code as their guide, as the Employment Tribunals still expect all employers to have some form of procedure for dealing with disciplinary and grievance procedures. We also find that a common problem is that when a small employer says it has such procedures, in fact all it has is a list of types of incidents that it classes as "minor misconduct" and those it classes as "gross misconduct" without actually setting out a process of dealing with them.

At Hallett Employment Law Services we can help you introduce and implement fair and appropriate disciplianry and grievance procedures. If you need any help in dealing with this please do not hesitate to contact us.