Employment Matters June 2008

The removal of the statutory dismissal and discipline procedure will have an impact on ACAS’ code of practice on discipline and grievance.

Consultation has begun on the draft revised ACAS Code of Practice on Discipline and Grievance, and here at Cobbetts we are preparing a response based on the comments and observations of our employment law specialists and our clients. You can find the full text of the draft code at the ACAS website.  

This is your opportunity to have your say – the ACAS Code should be a reflection of good practice – not best practice but the acceptable standard which all employers should be expected to operate. We would welcome the opportunity to put forward your thoughts and concerns regarding what that standard should be.

Previous public consultation has persuaded the Government that a shorter code which concentrates on the key principles that underpin the handling of disciplinary and grievance situations in the workplace is what is required.

As a result the draft code is far less prescriptive than the old one and it may be that employers who turned to the old code for practical guidance will find it a far less helpful source of information and ideas. We are also interested in hearing from clients who found that, as long as they followed its advice, the old code provided a clear route forward for resolving disputes. The new code will be supported by guidance, however, and this will be far more detailed – the current draft is available at the ACAS website.

It is intended that the revised ACAS code will come into effect in April 2009 when the changes to workplace dispute resolution are due to come into effect. It is worth bearing in mind that the objectives of the review of workplace dispute resolution are to:

• Reduce the number of disputes reaching a formal stage
• Reduce the cost (in particular legal costs incurred taking advice on procedural points)
• Concentrate on solving the underlying problems, rather than getting bogged down in process
• Be flexible and simple 

A failure to follow the code will not, in itself, make a person or organisation liable to proceedings. Tribunals will, however, take the code into account when considering relevant cases. They will also be able to adjust any awards made in relevant cases by up to 25 per cent for unreasonable failure to comply with any provision of the code.

Of course it is commonly agreed that employers and employees should do all that they can to resolve disciplinary and grievance issues in the workplace. Following the code is meant to promote this.

Where it is not possible to resolve problems internally employers and employees will be encouraged to use a third party to help resolve the problem. This is likely to lead to a rise in mediation and we would be very interested to hear from clients who have had experience of this type of settlement to see whether it leads to better (and cheaper!) outcomes.

The key elements of good practice identified by ACAS that employers and employees should work to are as follows:

Employers and employees should do all that they can to resolve disciplinary and grievance issues in the workplace. Recourse to an employment tribunal should only be a last resort.

Whenever a formal process is being followed it is important to deal with issues fairly. The basic principles which ACAS advise employers to be mindful of are as follows:

• Prompt action is always best. Meetings and decisions should happen as quickly as poss
• Consistency is crucial and employers should ensure that like cases are treated alike.
• Thorough investigations should be made, to establish the facts of the case.
• Any grievance or disciplinary meeting should, so far as possible, be conducted by a manager who was not involved in the matter giving rise to the dispute.
• Where the employer is raising a performance problem there should be some input by the immediate manager.
• An employee should be informed of the basis of the problem and have an opportunity to put their case in response before any decisions are made.
• An employee has the right to be accompanied at any disciplinary or grievance meeting.
• An employee should be allowed to appeal against any formal decision.
• It is good practice to keep written records during disciplinary and grievance cases. A written record should be kept of the outcome.