Changes to disciplinary and grievance procedures: frequently asked questions

Tina Maxey of Steeles (Law) LLP continues a series of articles on changes to the law on disciplinary and grievance procedures with some frequently asked questions that look at the requirements of the revised Acas code of practice.

Do employers need to amend their disciplinary and grievance procedures?

Whether or not employers need to amend their existing disciplinary and grievance procedures depends on whether or not their procedures comply with the requirements of the revised Acas code of practice. The code, which is still in draft form (Draft code of practice on disciplinary and grievance procedures (PDF format, 58K) (on the Acas website)), retains many of the principles behind the statutory dispute resolution procedures and the existing Acas code of practice on disciplinary and grievance procedures (PDF format, 327K) (on the Acas website). Employers that already have effective procedures in place are unlikely to need to make significant amendments. Nevertheless, they should review their existing procedures to ensure that they comply with the revised code.

As with the existing code, employment tribunals must take the new code into account when deciding claims. However, a tribunal will also be able adjust the compensatory award by up to 25% if it feels that either party has unreasonably failed to comply with the new code. It is therefore in employers' interests to ensure that disciplinary and grievance procedures meet the code's requirements.

Must employers have written disciplinary and grievance procedures?

There is nothing in the revised code expressly stating that employers must have written disciplinary and grievance procedures. However, it is implicit that these should be in place given that, in its introduction, the code recommends that rules and procedures for handling disciplinary and grievance procedures "should be set down in writing, be specific and clear". In addition, employers are required to give employees certain information about any disciplinary rules and procedures and grievance procedures in a note with the written statement of terms and conditions of employment (with the exception of rules and procedures relating to health and safety). (See the Formation of the employment contract section of the XpertHR employment law manual for more details.)

On a practical note, written disciplinary rules are necessary to ensure that employees know what standards of performance and behaviour are expected of them. Having written rules and procedures helps management to deal with disciplinary and grievance situations consistently and fairly. Written grievance procedures provide a mechanism for employees to raise issues so that they may be resolved, thereby improving trust and confidence among staff.

Are there any particular provisions for small employers?

The revised Acas code applies to all employers, as does the existing code. Both versions recognise the particular difficulties faced by small employers when dealing with disciplinary and grievance situations and make clear that employment tribunals take the size and resources of employers into account when deciding cases. The fact that small employers may be unable to follow all the provisions in the code is also recognised.

What is the purpose of the Acas guide?

The Acas guide, which is also still in draft form (Discipline and grievances at work: draft Acas guide (PDF format, 650K) (on the Acas website)), aims to complement the code and provide more detailed good practice advice for dealing with discipline and grievances in the workplace. Unlike the code, the guide is purely advisory and tribunals are not required to take it into account when hearing cases. However, employers and employees are likely to refer to the guide at tribunal hearings, to support arguments about obligations under the code and whether or not non-compliance with the code was reasonable. It is expected that tribunals will consider the guide when deciding cases.

Does the code say anything about involving employees when drawing up rules and procedures?

In similar provisions to those in the previous code the revised code recommends that: "employees and, where appropriate, their representatives should be involved in the development of rules and procedures". This begs the question: what does "involve" mean? Involvement may not necessarily mean consultation, although the Acas guide says that developing rules "in consultation with employees (and their representatives where appropriate)" is good practice. Therefore, employers are advised to circulate new rules and procedures to employees and invite comments, which should be considered.

What does the code say about training on disciplinary and grievance procedures?

The code states that it is important "to help employees and managers understand what the rules and procedures are, where they can be found and how they are to be used". The wording suggests that employers should take a proactive approach. Therefore, it is advisable for employers to arrange training on disciplinary and grievance procedures, for employees and managers who are likely to be involved in their implementation.

Next week's topic of the week article will be more FAQs on changes to disciplinary and grievance procedures and will be published on 2 March.

Tina Maxey is a solicitor in the employment team at Steeles (Law) LLP (TMaxey@steeleslaw.co.uk).

Further information on Steeles (Law) LLP can be accessed at www.steeleslaw.co.uk.