New Acas code of practice on disciplinary and grievance procedures

This article examines the provisions of the new "Acas code of practice on disciplinary and grievance procedures", issued to take into account the repeal of the statutory dispute resolution procedures.

The new code of practice

The new Acas code of practice on disciplinary and grievance procedures replaces a version based on the statutory dispute resolution procedures. It is expected to come into force on 6 April 2009 when the statutory procedures are repealed by the Employment Act 2008. The code has been approved by the secretary of state, but must be laid before parliament before it is brought into force by order.

The new code is much shorter than the current one. In part, this reflects the fact that the abolition of the statutory procedures will result in the law being more straightforward. However, responding to consultations, Acas has also made a conscious effort to produce a "principle-based" code that is concise and easy to understand. The result is certainly concise, but the trade-off is that there is very little in the code that will help employers deal with difficult situations. The code provides a basic guide, but its recommendations would be regarded by most qualified HR practitioners as rather obvious. Because it needs to cover the widest possible range of situations, and be equally applicable to very small and very large employers, the recommendations tend to be general.

The new code is, however, significant. Following the abolition of the statutory dispute resolution procedures, it will be the main point of reference for the general standards of fairness in many dismissal and disciplinary situations. Although a breach of the code will not automatically render any dismissal unfair, a tribunal will regard it as a highly relevant factor. Further, an unreasonable failure to comply with the code may lead to an adjustment in any compensation awarded by the tribunal of up to 25%.

Acas has also produced Discipline and grievances at work: the Acas guide, which has been approved by the Acas council, and is also due to come into effect on 6 April 2009. The guide complements the code by providing good practice advice on dealing with workplace discipline and grievance issues, but employment tribunals are not required to take its contents into account.

General recommendations

Although the code of practice is concerned with the formal handling of disciplinary and grievance issues, the foreword stresses that many issues can be resolved informally and that "a quiet word is often all that is required". Where informal resolution is not possible, the foreword suggests that an independent third party should be considered to help resolve the problem through mediation. The mediator need not come from outside the employer's organisation, provided that he or she is not involved in the issue. However, the foreword says that, in some cases, an external mediator might be appropriate.

The code recommends that procedures for dealing with disciplinary and grievance situations should be set out in writing and be "specific and clear". Employees and, "where appropriate", their representatives should be involved in the development of these rules and procedures.

The introduction stresses that, whatever the size of the employer, it is important that discipline and grievance issues are dealt with fairly. There are, it says, a number of elements to this:

  • Issues should be dealt with promptly.
  • Employers and employees should act consistently.
  • Employers should carry out any necessary investigations to establish the facts.
  • Employers should inform employees of the basis of the problem and give them an opportunity to put their case before any decisions are made.
  • Employers should allow employees to be accompanied at any formal disciplinary or grievance meeting.
  • Employers should allow employees to appeal against any formal decision made.

Dealing with disciplinary issues

The code includes poor performance in "disciplinary issues", even if this is dealt with by the employer under a separate capability procedure. It does not, however, deal with the procedures for dismissing on the grounds of redundancy, and also expressly states that it is not relevant to the non-renewal of fixed-term contracts.

The code stresses the importance of a reasonable investigation before any disciplinary meeting is held, and states that, in misconduct cases, different people should, where practicable, carry out the investigation and disciplinary hearing. If the investigation includes a meeting with the employee, this meeting should not, in itself, result in any disciplinary action. If a suspension with pay is considered necessary, the suspension should be kept as brief as possible and should be kept under review. The employer should make it clear that the suspension is not disciplinary action.

If the investigation indicates that there is a disciplinary case to answer, the employer should notify the employee of this in writing. This notification should give sufficient information for the employee to prepare to answer the case at a disciplinary meeting. "It would normally be appropriate", says the code, "to provide copies of any written evidence, which may include any witness statements, with the notification." There is no discussion in the code of anonymous evidence, or circumstances in which the employer may wish to treat evidence as confidential. The notification should give details of the time and place of the disciplinary meeting and inform the employee of the right to be accompanied.

No specific recommendations are made about the timing of the meeting except that it should be held "without unreasonable delay [while] allowing the employee reasonable time to prepare" his or her case.

The code provides that employers and employees, as well as chosen companions, should make "every effort" to attend the meeting. Where an employee is "persistently unwilling or unable" to attend a disciplinary meeting without good cause, the employer should make a decision on the evidence available. The code does not, however, elaborate on what is meant by "persistently". Nor does it deal with situations in which the employee has a good cause for not attending, for example long-term sickness.

As to the structure of the meeting, the code envisages the employer explaining the complaint against the employee and going through the evidence that has been gathered. The employee should then be given a reasonable opportunity to ask questions, present evidence and "call relevant witnesses". There is no requirement on the employer to call witnesses, nor any indication that the employee should be allowed an opportunity to cross-examine directly any witnesses that the employer does call. However, the recommendation that the employee should be able to call witnesses if he or she so wishes is clear. If witnesses are to be called by either side, the relevant party should give advance notice of its intention in this regard.

The code explains workers' statutory right to be accompanied at a disciplinary hearing by a trade union official or colleague of their choice. However, it stresses that the request to be accompanied must be a reasonable one, and states that it would not normally be reasonable for a worker to insist on being accompanied by a person whose presence would prejudice the hearing. Nor would it be reasonable for a worker to ask to be accompanied by someone from a remote geographical location, if someone suitable and willing was available on site.

Where the outcome of the meeting is that misconduct is confirmed or the employee is found to be performing unsatisfactorily, the code states that it is "usual" to give the employee a written warning. Further acts of misconduct or a failure to improve performance within a set period would normally result in a final written warning, although the code acknowledges that, in serious situations, it may be appropriate to move straight to a final written warning.

A warning should set out the nature of the misconduct or poor performance and the change in behaviour or improvement in performance required - with the timescale. The employee should be told how long the warning will remain current, but the code does not specifically require the warning to be for a finite period. Neither does it make any recommendation as to the period for which a warning should remain in effect.

The warning should also specify the likely consequences of further misconduct, for example dismissal.

The code stresses that, although in cases of gross misconduct it may be appropriate to dismiss for a first offence, a fair procedure should always be followed. There is no equivalent in the code of the much criticised modified dismissal procedure under the statutory dispute resolution regime.

The code provides that, where employees feel that the action taken against them is wrong, they should appeal against the decision. They should give grounds for the appeal in writing to their employer. The appeal should be dealt with impartially and, wherever possible, by a manager who was not previously involved in the case.

Two "special cases" are mentioned in terms of discipline. Where disciplinary action is being considered against an employee who is a trade union representative, the code suggests that the matter should be discussed at an early stage with an official employed by the union, with the employee's consent. The code also states that, where an employee is charged with, or convicted of, a criminal offence, this is not normally, in itself, reason for disciplinary action. The employer needs to consider what effect the charge or conviction has on the employee's suitability to do the job, and his or her relationship with the employer, colleagues and customers.

Dealing with grievances

The second part of the code sets out the framework for the handling of grievances. The definition of grievance is very wide: the code states that grievances are "concerns, problems or complaints that employees raise with their [employer]". The provisions on grievances are very brief and, in places, simply repeat sections of the code on disciplinary hearings - particularly with regard to the right to be accompanied. One theme that emerges is that each stage of the grievance should take place "without unreasonable delay" - the phrase occurs six times in the section of the code dealing with grievances. However, the code does not elucidate what magnitude of delay would count as unreasonable.

The code provides that, if it is not possible to resolve a grievance informally, the employee should raise the matter formally (and without unreasonable delay) with a manager who is not the subject of the grievance. This should be done in writing, setting out the nature of the grievance.

The employer should then arrange a formal meeting at which the employee is allowed to explain the grievance and how he or she thinks it should be resolved. Consideration should be given to adjourning the meeting for any investigation that may be necessary. The code then repeats the explanation of the right to be accompanied by a trade union official or fellow worker.

Following the meeting, the employer should decide what (if any) action to take and communicate this to the employee in writing. The employee should be told that he or she can appeal if unhappy with the outcome.

The code's recommendations on the handling of appeals in grievance cases are essentially the same as those made in relation to disciplinary appeals.

Overlapping discipline and grievance cases

The code provides that, where an employee raises a grievance during a disciplinary process, the disciplinary process may be temporarily suspended in order to deal with the grievance. However, it does not discuss when this option will be appropriate and when it may not. Where the grievance and disciplinary cases are related, the code says that it may be appropriate to deal with both issues concurrently.

Collective grievances

The code states that it does not apply to grievances raised on behalf of two or more employees represented by a trade union or other workplace representative. These grievances should be handled in accordance with the organisation's collective grievance process.

The new code in practice

The new code does little to clarify the difficult points of procedure with which large employers may struggle. However, neither does it place any surprising or burdensome requirements on employers. It is likely that the code will prove of great use to very small employers without an HR function where issues are dealt with by owner managers or other line managers with no HR expertise. However, larger employers are unlikely to feel the need to refer to it on a regular basis.

The advent of the new code is therefore unlikely to require employers to carry out a particularly careful review of their policies on discipline and grievance in order to ensure compliance. A procedure that complies with the statutory dispute resolution procedures will almost certainly comply with the Acas code. Employers should keep a lookout for further developments in case law that will expand on these very general principles of fairness and deal with some of the more difficult procedural points not addressed in the code.