The New Acas Code of Practice on Disciplinary and Grievance Procedures - April 09

A welcome change to employment law comes into effect on 6 April 2009 with the repeal of the statutory disciplinary and grievance procedures.  There is a new revised Acas Code which essentially reverts to the pre-2004 position with a few major changes. These changes are set out below and include the right to call relevant witnesses and the ability of the Tribunal to adjust an award of compensation by up to 25%.

The Code is accompanied by an Acas Guide which provides ‘best practice’ on handling discipline and grievances at work.  The Guide also provides specific guidance on dealing with all types of absences including specific health problems and long term absence through ill health.

The revised Code has an Introduction which establishes the key principles that govern the Code.  The principles include:

• Fairness and transparency.
• Dealing with issues promptly and consistently.
• Investigate to establish the facts.
• Inform the employee of the basis of the problem and provide them with an opportunity to put their case.
• Allow an appeal against any formal decision made.

The Code does allow for the size and resources of the employer to be taken into account and acknowledges that it may not be practicable for all employers to take all of the steps in the Code.

The Code only applies to misconduct or poor performance matters; it does not apply to non-renewal of a fixed term contract or redundancy. The Code does still allow for minor disciplinary situations to be dealt with informally.
 
The revised Code provides guidance on the conduct of an investigation and the importance of establishing the facts before deciding whether there is a disciplinary case to answer.  An employee at a disciplinary hearing will now have the opportunity to call ‘relevant witnesses’.  This might cause difficulties in practice where those giving a statement may not wish to attend a disciplinary hearing.    It might be reasonable to not have the witness attend, for example if the witness is a vulnerable person (elderly, or a child) or in a severe case of bullying.  This is likely to be limited to a minority of cases and will have to be looked at on a case-by-case basis.
 
Finally, the Code provides that the employee and their companion should make every effort to attend the disciplinary hearing.

The Code also makes recommendations on the handling of a grievance.  The Code is quite clear that where a grievance is raised in writing, a meeting will be arranged as soon as possible.  It might be necessary to adjourn the meeting to allow an investigation to take place and for the meeting to be reconvened at a later date.

In terms of next steps, employers should review their disciplinary and grievance procedures to ensure they are in line with the new Code. An unreasonable failure to follow the Code will entitle Tribunals to adjust any award by up to 25%.  Equally, an employee’s compensation may be also reduced by the same amount if the Tribunal considers it ‘just and equitable’ to do so.

If you would like further advice on this issue, please contact a member of the Rickerbys Employment team.