Out with the old...
On 6th April 2009, the troublesome statutory disciplinary and grievance procedures framework was repealed save only for those cases ongoing as at that date, in relation to which the old rules will continue to apply (please see the more detailed "transitional provisions" section below).
That means an end to:
- findings of automatic unfair dismissal by reason of a failure to follow the statutory minimum disciplinary process;
- the compulsory enhancement to or reduction from compensation, depending on which party was to blame, of between 10% and 50% for non-compliance;
- the requirement on the part of an employee to bring a grievance before he or she can pursue employment tribunal claims in relation to cases that did not concern dismissal.
The "old rules" will remain in place for those disciplinary and dismissal cases where on or before 5th April 2009:
- the employer has dismissed the employee;
- has taken relevant disciplinary action against the employee;
- has complied with Steps 1 or 2 of the standard procedure, or step 1 of the modified procedure.
The previous regime shall remain in place in those grievance cases where:
- the action about which the employee has complained occurred wholly on or before 5th April 2009;
- where the action complained of begins before 5th April but continues after that date, the statutory regime shall continue to apply only where the employee submits a grievance or seeks to issue proceedings before 4th July 2009;
- for equal pay claims and claims for redundancy payments, on a similar basis to that described above save that the cut-off date is 4th October 2009.
And in with the new...
For any new disciplinary cases or grievance issues that arise on or after 6th April 2009, there is a new procedural regime.
The key principles that apply to both disciplinary and grievance procedures are as follows:
- employers and employees should raise and deal with issues promptly and should not unreasonably delay meetings, decisions or confirmation of those decisions.
- employers and employees should act consistently.
- employers should carry out any necessary investigations, to establish the facts of the case.
- 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 an employee to appeal against any formal decision made.
Disciplinary and Dismissal Cases
As summarised above, it is no longer mandatory on pain of a finding of automatic unfair dismissal to follow a minimum process. Instead the actions of employers will be considered in light of the new ACAS Code of Practice on Disciplinary and Grievance procedures. A copy of this can be downloaded from the ACAS website at the following link: www.acas.org.uk/dgcode2009.
In determining whether a fair dismissal process has been followed, Employment Tribunals are required to take the Code into account, although the Code is not in itself legally binding. Any failure by an employer to adhere to the principles of the Code will not automatically render a dismissal unfair but, in the absence of a very good reason for departing from the Code's principles, it is more likely than not to lead to a finding of unfair dismissal.
The Code applies to misconduct and performance dismissals, but does not apply to dismissals for redundancy or non-renewal of fixed-term contracts. Note that while the Code is not clear on this point, in our view the key procedural requirements of a fair dismissal process also apply to dismissals for ill-health.
There is much about the Code that is very familiar and there is nothing in it that ought to surprise employers with established disciplinary procedures.
Key elements are:
- different people should carry out the investigation, disciplinary and appeal stages;
- the investigation meeting should not result in a disciplinary “sanction”;
- suspensions should be kept as short as possible and it should be made clear that the suspension is not in itself a punishment;
- the employee should be notified of disciplinary proceedings in writing with details of the time and venue of the hearing and the right to be accompanied;
- the employee should be provided with sufficient detail of the case to enable him to respond: copies of written evidence should normally be supplied with the notification;
- both parties should give advance notification to the other if they intend to call witnesses;
- the employer should avoid unreasonable delay;
- there should be written notification of outcomes.
Grievances are defined as “Concerns, problems or complaints that employees raise with their employers.” Note that these provisions do not apply to collective grievances and it is not clear that the procedures should be followed in relation to grievances submitted by ex-employees, although we recommend that employers do so.
Some of the key principles are as follows:
- informal/oral grievances may be resolved informally
- if a grievance cannot be resolved informally it should be formally put in writing without unreasonable delay;
- if a grievance concerns the employee’s line manager, it should be raised with another manager;
- the employer should arrange a formal meeting to hear the grievance;
- the issues should be investigated;
- there is a right to be accompanied;
- there is a right of appeal to an impartial manager if the employee is dissatisfied.
More detailed guidance notes have been published by ACAS to supplement the Code and these can also be found at the above link. The guidance note is advanced as “best practice” in dealing with discipline and grievance at work.
Unlike the Code itself, Tribunals are not required to have regard to the guidance notes, but you can be sure they will be familiar with it and are likely to question any significant departures from the “best practice” set out therein;
Available at: http://www.acas.org.uk/CHttpHandler.ashx?id=1043
For employers with existing detailed disciplinary and grievance procedures, there is unlikely to be anything in the new provisions that will cause the need for a re-write but the Code is not a lengthy or complicated document and we recommend that Human Resources personnel and those with managerial responsibility for conducting disciplinary or grievance issues take a little time to familiarise themselves with the it and the associated guidance notes.