The Acas Code on Disciplinary and Grievance Procedures

 

There’s a new code out, from the Arbitration and Conciliation Service (ACAS), dealing with disciplinary and grievance rules and procedures.  It’s a statutory code, so although it’s not law itself, it will be taken into account by employment tribunals seeking guidance.  It came into force on the 1^st October 2004.  You can download it from http://www.acas.org.uk/media/pdf/9/5/CP01_1.pdf

 

 

I sympathise, but you may actually find, just for once, that this is a help.  It’s a practically based work, and there is an emphasis on simplifying life for all concerned.  It acknowledges that not everything it sets out will be suitable for small businesses, and it stresses the basic duty to act reasonably.  To help you understand what that means, it actually sets out what the core principles of reasonableness are.

 

Very good!  Yes, there are such minimum procedures, under Schedule 2 of the Employment Act 2002, and they are set out in the Code, as annexes.  There are various procedures, dealing with

They’re all annexed, as is a section on those cases where the statutory procedures either don’t need to be complied with, or alternatively are deemed to have been complied with. 

 

The point about these is that, if the employer doesn’t follow the minimum procedures, where he should, and goes ahead and dismisses an employee, then a tribunal will be obliged to find the dismissal automatically unfair.  What’s more, if either party fails to observe the procedures, compensation can be increased or decreased by between 10% and 50%.  It’s definitely intended to be a two-way street.

 

 

What it sets out to do is to guide the employer through the practicalities of operating the statutory procedures.  So, for instance, the section on disciplinary procedures starts off by suggesting the process whereby the employer should be assembling and recording the facts, and the matters which might guide him as to whether to take formal action, to deal with a matter informally, or just to drop it.

 

 

Yes.  It looks at what the processes are for convening and running a meeting to discuss the problem.  One useful section deals with what happens if the employee (for no good reason) fails to attend either a properly notified first meeting or a rearranged second meeting.  It takes the employer through what to do according to whether this a first offence, a final warning, or a dismissal; and how the employer should look at determining the outcome as well as notifying and implementing it. 

 

Yes.  The code outlines circumstances in which either party may, exceptionally, be excused for not following the procedures, e.g. if either party reasonably believes that to do so will expose them to significant threats or harassment; or circumstances beyond their control – such as long-term illness – prevent them from following the normal path.  Another problem area which it covers relates to the interaction between disciplinary and grievance procedures, so that, for instance, if a grievance matter is raised during the currency of disciplinary proceedings, it may be sensible to suspend the latter to investigate the former.  That cross-over area is quite tricky, and it looks in some detail at which procedures would hold sway in a particular set of circumstances.

 

 

Normally speaking, there should still be a properly convened meeting to allow the employee to explain his side of the story.  After all, as a lawyer, you above all should believe in the fairness of allowing both sides to be heard.  The difference with gross misconduct is that a first offence may justify dismissal without a history of previous warnings.

 

 

Well, I mentioned above that there is a modified version of the statutory procedures which applies in such cases.  What you have to do there is write, as soon as possible, to give what are believed to be the facts giving rise to the dismissal, and the reasons for thinking at that time that the employee was guilty of the misconduct in question.  What’s more, the employer must inform the employee of his right to an appeal hearing and, if required to do so by the employee, must conduct such a hearing as a genuine appeal.  If the employer doesn’t follow this procedure then, however valid his original reasons for the instant dismissal, the tribunal will be obliged to find it to have been automatically unfair.

 

 

The first thing is to establish whether the reason for absence, which will presumably be advanced as being illness of some sort, is genuine or not.  If you believe it is, then you have a conduct issue on your hands, and the normal disciplinary route applies.  If it is genuine, then the issue goes to capability not conduct, and you are expected to have a more sympathetic approach.  You have to think about it in the round, considering how soon you can expect the employee to be back to full strength, what alternative work you might be able to transfer them to, and what precedents you may have set by the way you have dealt with such problems before.  You also need to factor in any possible overlap with the Disability Discrimination Act 1995, which is a minefield!

 

 

Yes, you are.  What’s more, the code specifically states that, because the impact of absence is likely to affect small businesses more than large ones, the action taken by small operations may be expected to come sooner than in large outfits.

 

 

It does.  It does not of course attempt to write a sample set of rules, as businesses’ circumstances are too diverse for that, but what it does do is to indicate a number of areas in respect of which it would expect there to be rules, and the principles which should be applied to good rule making.  It also indicates how firms should notify staff of what the rules are, and what the likely penalties for breach of them may be.  What’s more, it lists a number of instances of what it would normally consider as being gross misconduct.

 

Again, yes, it does.  It sets out fourteen principles that a firm should follow when doing its drafting.

 

 

I think even you may find the code here to be fair and balanced!  It starts off by saying that grievances should always be sorted out informally if possible.  If not, however, there are certain procedures to be followed, which must be initiated by the employee.  If he doesn’t stick to the rules, he may in effect be estopped from relying on the grievance later, when trying to enforce other rights.  There are certain exemptions, which are listed in an annex, but basically unless the employee has set out their grievance in writing to the employer, and given him at least 28 days to do something about it, then any complaint to a tribunal based on the grievance will automatically be kicked out until the employee puts matters right according to the code.  And, just like the disciplinary procedures, if a tribunal finds that either side has failed to follow these procedures, it should adjust the compensation in the appropriate direction by between 10% and 50%.

 

 

That’s one reason why, once you get past the informal stage, the grievance should be in writing.  But you should acknowledge that not everyone is going to be good at setting out clearly what their problem is, especially if English is not their first language, and so you should encourage them to seek assistance.  After all, it’s in your interest as much as theirs to know exactly what the problem is.

 

 

Set up a meeting.  The code sets up some ground rules to guide you in doing this.  Give them the first chance, to say what the problem is, and what action they would like to see taken to rectify it.  I know that means you may be unprepared to some extent, but you can always adjourn to consider, or seek advice, if necessary.  Once you have considered it, and reached a decision, you should write to let the employee know what that is.  Generally speaking, that should be within five working days.  When writing, you should also let the employee know about his right to appeal.

 

It has to be.  You should bear in mind the possibility of an appeal when constituting the original meeting.  Try to ensure that you hold in reserve a senior manager to hear any appeal, or at least a different manager if there is no-one senior.   It’s really only in a one-man band that it gets very difficult, but even there the possibility still has to be open, and the person hearing the appeal has to be as impartial as he can.  Remember that this is part of the statutory process, so if an employee does not avail himself of an appeal which has been offered to him, it could affect the calculation of compensation in any subsequent tribunal proceedings.

 

 

Yes, it does.  Again it looks both at what tests procedures should satisfy, and what areas may be expected to give rise to grievance.

 

 

You certainly did.  Whether a disciplinary or a grievance matter, and whether a first meeting or an appeal, an employee has that right.  Note though that it must truly be such a hearing, so it is only if some disciplinary action could follow, or a worker’s complaint is being considered, that the rule applies.  Informal meetings or initial fact finding meetings don’t count – but if in doubt I should encourage representation.

 

Broadly, it can be either a fellow worker, or a trade union representative.  The fellow worker shouldn’t be someone whose presence is going to inflame matters, and equally no fellow worker should be pressurised, or required, to be a representative.  Whoever it is should be given paid time off to prepare for and to attend the meeting.  Unless there are additional contractual rights, there is no right for a legal representative to attend.  The companion can participate fully in the meeting, e.g. by putting the worker’s case, or asking questions on his behalf, but he can’t insist on answering questions put to the worker.