A reminder to all employers that the new ACAS Code of Practice on disciplinary and grievance procedures will come into force on 6 April 2009. The ACAS Code replaces the existing statutory dismissal and grievance procedures and advises employers (and employees) on how to deal with discipline and grievances. An "unreasonable" failure by an employer to follow the Code will entitle an Employment Tribunal to increase any award of compensation by up to 25%.
It is important that employers are familiar with the requirements of the new Code and that their disciplinary and grievance procedures are compliant with it, in order to reduce the risk of a successful Tribunal claim.
As set out in our Newsflash of 11 November 2008, there are a number of differences between the requirements of the statutory procedures and the new ACAS Code.
In particular, the ACAS Code:
- Does not apply to dismissals due to redundancy or the non-renewal of fixed term contracts on their expiry.
- Suggests that the parties should consider using an independent third party, such as a mediator, to resolve disputes.
- Applies to each stage of the disciplinary process including the issuing of warnings.
- Advises employers to "help employees and managers understand what the rules and procedures are, where they can be found and how they are to be used".
In respect of disciplinary procedures, the main changes are:
- Employees and their representatives should be involved in the development of rules and procedures.
- In misconduct cases, different people should carry out the investigation and the disciplinary hearing if possible.
- When the employee is informed of the problem, they should be notified in writing and must be provided with copies of written evidence, including witness statements.
- The employee should be given a reasonable opportunity to ask questions, present evidence and to call relevant witnesses at disciplinary hearings.
- There is new guidance on who may accompany an employee to a disciplinary hearing and what that companion may or may not do during the hearing.
- A decision to dismiss must only be taken by a manager who has specific authority to do so.
- If an employee is "persistently unable or unwilling to attend a disciplinary meeting" (without good cause) the employer is entitled to make a decision on the evidence.
There are also transitional arrangements for the phasing out of the statutory procedures and the introduction of the new ACAS Code (as detailed in our Newsflash of 23 December 2008). These set out which procedure will apply to dismissals, disciplinaries and grievances which occur leading up to and following the introduction of the new ACAS Code on 6 April 2009.