As from 6 April 2009, the new ACAS code of practice – rather than the discredited statutory dispute resolution procedures – will hold the key to the successful resolution of workplace disputes.
Out with the old, in with the new
On 6 April this year, the complex dispute resolution regime that took effect on October 2004 will be swept away. In its place, we will largely see a return to the old law. That means:
- no more automatically unfair dismissals for procedural failings;
- no more procedural bars that prevent employees bringing other types of claims unless they have lodged grievances first; and
- no more complicated provisions about extending time limits for claims.
However, not everything will go back to how it was:
- A new slimmer and more user-friendly ACAS code will be introduced.
- As well as running the risk of a finding of unfair dismissal, employers can still be punished for procedural failings by an increase in compensation, but this will be a more flexible, less penal regime based on the ACAS code rather than the statutory procedures.
The new ACAS code
The new code on discipline and grievances at work is in reality a shortened version of the old code of practice, which had slipped from centre stage after the introduction of the dispute resolution procedures. The key principles are familiar:
- Issues should be dealt with promptly. Meetings and decisions should not be unduly delayed.
- Employers should act consistently and ensure that like cases are treated alike.
- Appropriate investigations should be made to establish the facts of the case.
- Any meetings should, so far as possible, be conducted by a manager who was not involved in the matter giving rise to the dispute.
- An employee should be informed of the basis of the problem and have an opportunity to put their case in response before any disciplinary decisions are made.
- An employee has the right to be accompanied at any disciplinary or grievance meeting.
- An employee should be allowed to appeal against any formal decision made.
ACAS has also published fuller, non-statutory guidance to supplement the statutory code. This supplementary document is a good deal longer, sets out good practice and deals with the practical issues involved in handling workplace disputes, including providing step-by-step guides. Unlike the code, the guidance has no legal status.
Sanctions for breach
Failure to comply with the new ACAS code will not, of itself, give rise to a legal claim but the tribunal will be able to take compliance (or non-compliance) with the code into account in determining whether a dismissal is fair. In addition, any unreasonable failure (whether by the employer or the employee) to follow the new code may result in a tribunal adjusting any award of compensation by up to 25 per cent where it considers it just and equitable to do so.
The statutory dismissal procedures will continue to apply if disciplinary procedures are started before 6 April this year. The old procedures will also generally apply to grievances if they relate to something that has happened before that date.
What about redundancies?
One of the more unpopular features of the old regime was the wide reach of the statutory dismissal procedures. For example, they applied to dismissals on grounds of redundancy unless the collective consultation provisions for large-scale redundancies were triggered. Although the unfair dismissal law gave such employees much the same procedural protection, it was hard to understand why employers were forced to apply procedures that were primarily aimed at protecting employees from arbitrary disciplinary decisions.
The new code makes it clear that it does not apply to redundancy dismissals. Employers will also welcome the fact that it does not apply to the non-renewal of fixed-term contracts either. In both cases, the employees concerned retain the protection of the general unfair dismissal legislation.
Most public sector employers are likely to find that their written policies and procedures already comply with the new regime, but they may still need some updating if only to remove any out-of-date references to the statutory procedures. Managers responsible for handling disciplinary or grievance procedures should also be made aware of these new developments, particularly those relating to the adjustment of compensation.