Employers and lawyers alike have grappled with the complexities of the statutory disciplinary, dismissal and grievance procedures since their introduction in October 2004. A review of the current regime indicated that the system was not working. This has forced the Government into simplifying the internal dispute resolution process. As a result, ACAS has recently published a revised Code of Practice on Disciplinary and Grievance Procedures (the “Code”). Subject to parliamentary approval, the Code will replace the existing statutory procedures on and after 6 April 2009.

Overview of the new Code

Disciplinary action and dismissals

The Code will apply to misconduct, poor performance and capability dismissals. The Code will not, however, apply to redundancy dismissals and expiry of fixed term contracts although employers must still act fairly prior to such terminations. Relaxation in these areas will give employers more latitude in terms of dismissing personnel on redundancy grounds and where employment for a specific task (e.g. to provide maternity cover) has been completed.

Moving away from a prescriptive model, the Code requires employers who are dismissing an employee on grounds of conduct or capability to do the following:-

  • Establish the facts of the case
  • Inform the employee of the problem
  • Hold a meeting with the employee to discuss the problem
  • Allow the employee to be accompanied at the meeting
  • Decide on the appropriate action
  • Allow the employee to appeal

The employee should be given a reasonable opportunity to ask questions, present evidence and call relevant witnesses. Advance notice should be given by the employee if they intend to do so. The employee should also be given the opportunity to “raise” points about any information provided by relevant witnesses. Whether this would permit the employee to cross examine witnesses is unclear and could lead to potential litigation.

If an employee is “persistently” unable or unwilling to attend a disciplinary meeting “without good cause”, a decision should be made on the available evidence. This should allow employers to carry on with the dismissal process if an employee deliberately goes off sick for “work related stress” to avoid the disciplinary process.

Grievances

A grievance is defined as a ‘concern, problem or complaint’ that employees raise with their employers. The Code does not apply to grievances raised on behalf of two or more employees by a trade union or other appropriate workplace representative. With individual grievances, the process is as follows:

  • Let the employer know the nature of the grievance
  • Allow the employee to be accompanied at the meeting
  • Decide on appropriate action
  • Allow the employee the right of an appeal

So what’s new?

  • There is now a right to appeal against all forms of written warnings – the Code does not refer to oral warnings.
  • When deciding whether to take disciplinary action against an employee who has criminal charges or convictions which are not related to their employment, the Code now allows employers to consider the effect of the employee’s action on their business, work colleagues and customers.
  • A disciplinary process may be temporarily suspended to allow a grievance to be heard or, if the grievance and discipline are related, the issues may be dealt with concurrently.
  • Failure to comply with the Code attracts an upward or downward adjustment of any award by up to 25% (previously between 10% to 50%) although there is the possibility that the figure of 25% may be reduced further to 10% by Parliament.
  • There is no longer a requirement to hear grievances from ex-employees.
  • There is no longer any modified grievance and disciplinary procedures.
  • Missing a step in the Code will not render a dismissal “automatically unfair” but could lead to an uplift on awards.
  • There is no longer an automatic extension of time for filing a Tribunal claim – employees must, in most cases, now lodge their claims within three months of the act complained of.
  • The use of a third party mediator (internal or external) to help resolve workplace disputes is encouraged.

Action points

Employers should audit their current three step disciplinary, dismissal and grievance policies before 6 April 2009 to ensure that existing practices reflect the spirit of the Code. After this date, the ACAS Code of Practice will become the key source of guidance for Tribunals in determining the fairness of any dismissal. Employers must also be wary of the transitional provisions which mean that issues arising before 6 April 2009 may have to be dealt with under the old regime.