The long awaited revised ACAS Code of Practice on Disciplinary and Grievance Procedures has now been published. It comes into effect on 6 April 2009 and to the welcome relief of many employers will replace the statutory dismissal and grievance procedures.
An "unreasonable" failure by an employer to follow the revised Code will entitle a Tribunal to increase any award of compensation by up to 25%.
Click here to view the Code:http://www.acas.org.uk/CHttpHandler.ashx?id=961&p=0
The Code advises employers (and employees) on how to deal with discipline and grievances and although it isn’t legally binding, Tribunals will be obliged to take it into consideration. There are a number of important differences between the revised Code and the existing statutory procedures and we recommend that employers familiarise themselves with the new Code over the forthcoming months. It is important for employers to check that their current procedures comply with the Code and if not, they must be amended and brought in line with the Code. Any subsequent changes to an employer's disciplinary or grievance procedures should be communicated to management and staff.
The Code is still in draft form but is expected to be approved by Parliament without any significant changes. It is not yet known whether the Government will issue any regulations setting out any transitional arrangements for April next year.
Many of the steps set out in the Code mirror existing 'good practice' already followed by many employers.
Whereas the statutory procedures are rigid and uncompromising, the Code is drafted in more general terms and is based on certain core principles. The main changes in the Code are:
- It will not apply to dismissals due to redundancy or the non-renewal of fixed-term contracts on their expiry;
- The parties should consider using an independent third party, such as a mediator, to resolve disputes;
- Employees (and their representatives) should be involved in the development of rules and procedures; ]
- There is more emphasis on employees having to behave reasonably and consistently;
- It deals with overlapping grievance and disciplinary cases, as well as collective grievances.
With regard to disciplinary procedures, the main changes are:
- 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.
With regard to the grievance procedure, there are minimal changes, except for the additional guidance on being accompanied at a hearing which is detailed above.