UK: New Acas Code Of Practice on Disciplinary And Grievances

Last Updated: 28 November 2008
Article by Val Dougan

The recently published Acas Code of Practice on Disciplinary and Grievance Procedures (the Code), contained a few surprises, and will undoubtedly involve changes to most disciplinary and grievance policies. In this article, we provide an overview of the post April 09 regime, and action points arising from the new Code.

Background

The Code will replace the universally disliked Statutory Dispute Procedures (SDP's) which were criticised for being overly technical and prescriptive. In response to this, the first draft of the Code, published in May 2008 was rather vague and principle based. Following consultation, the Code has now been tightened up and the result appears to involve a compromise between flexibility and certainty. Whether this will lead to a reduction in cases brought purely to establish what an employer needs to do remains to be seen. For example, the introduction of the opportunity to call witnesses at disciplinary hearings will no doubt generate plenty of debate.

Subject to Parliamentary approval, the Code will come into effect on the 6 April 2009, when the existing SDP's are abolished.

An overview of the New Regime

The abolition of the SDP's will bring a number of benefits for employers. Employees will no longer need to raise a grievance before proceeding to Tribunal, and a breach of the Code in itself will not attract liability. The rather unusual modified dismissal and grievance procedures which applied to post employment disputes have been removed, relieving employers of any obligations to deal with such issues.

The Code only applies to disciplinary and grievance cases, and therefore employers will no longer be obliged to follow the mandatory 3 step dismissal process prior to the expiry of a fixed term contract or a redundancy dismissal. Employers may wish to revisit these policies to remove any additional obligations which will become unnecessary following the abolition of the SDPs.

An employer who wishes to take disciplinary action will still be expected to inform the employee of the allegations, have a meeting with them and offer an appeal. If a grievance cannot be dealt with informally, then the Code follows a similar process to the SGP, with a meeting to discuss the issues and a right of an appeal. Employers will now have some flexibility around how they do this, depending on their size and administrative resources. The Code recognises that one size does not fit all.

From an employer's perspective, so far so good. Yet there are serious financial penalties if an employer unreasonably fails to follow the Code. If there has been an unreasonable breach of the Code, (by the employee or the employer) and a claim is successful, the Tribunal have the power to increase or decrease the award by up to 25%.

The New Code

The key changes from the previous version of the Code are outlined below with suggested action points for employers -

The foreword to the Code

This contains suggestions on suitable "independent third parties" to help resolve conflict. The new Code suggests this may be an internal mediator (as long as they have not been involved in the issue) or, in some cases, an external mediator may be appropriate. The previous draft did not specifically refer to mediation, which was one of the key recommendations of the Gibbons review. The foreword is not legally binding on employers, and this section constitutes best practice.

Action – Employers may wish to introduce mediation training for their HR staff and consider sourcing external mediators.

Recognition that there is no obligation to have a separate capability procedure. Capability may be dealt with under an organisation's disciplinary procedure, or if an organisation has one, then a separate capability procedure.

The introduction to the Code

Employees and "where appropriate" their representatives should be involved in the development of rules and procedures.

Action – If they do not already do so, employers should consider consultation measures with employees and their representatives regarding changes to the disciplinary and grievance policies.

Steps to follow during a disciplinary process, including

Where appropriate, send witness statements and written evidence to the employee at the same time as the letter inviting the employee to attend the disciplinary meeting.

A new clause 12 explaining how a disciplinary hearing should proceed with a new right to call witnesses. "the employee should also be given a reasonable opportunity to ask questions, present evidence and call relevant witnesses. They should also be given an opportunity to raise points about any information provided by witnesses. Where an employer or employee intends to call relevant witnesses they should give advance notice that they intend to do this."

Action - Many organisations do not allow employees to call witnesses to disciplinary hearings and this change may involve a review of your disciplinary policy and procedure. Although framed as a "reasonable opportunity" to call a witness rather than a "right" this will mean that employers could face an uplift of any compensation awarded, if they unreasonably refuse to allow a witness to give evidence at a hearing.

Guidance on what a reasonable request to be accompanied amounts to. The Code explains that a reasonable request would not involve a companion whose presence could prejudice the hearing or who is based far away from the meeting.

Action – employers may wish to revise their disciplinary policy to explain that right to be accompanied is subject to considerations of reasonableness.

Recognition that an employer can proceed with a disciplinary hearing in absence where an employee has been persistently "unable or unwilling to attend without good cause."

Action – under the old system an employer only needed to reconvene a meeting at least once after the original meeting. The requirement that a hearing should take place in absence only after an employee has persistently been unable or unwilling to attend a disciplinary meeting without good cause will be problematic for employers. This may also involve changes to a disciplinary policy.

Employees should submit written grounds of appeal prior to the appeal meeting.

Steps to follow during a grievance process, including

Recognition that where appropriate, a grievance should be dealt with informally.

Action – under the SGP , once a grievance was put in writing, this triggered the formal process and a 3 step meeting process. This is abolished with the emphasis on trying to resolve grievances informally and early before the situation escalates.

If, during the grievance meeting, it becomes obvious that further investigation is necessary the meeting should be adjourned for this to take place.

Action – this may involve a change in employers processes depending on how they conduct their grievance meeting and investigation.

Additional guidance on the right to be accompanied at a grievance meeting (which is in similar terms to the right to be accompanied in the disciplinary section).

Two new sections

A new section on overlapping disciplinary and grievance processes. If a grievance is raised during a disciplinary process, the disciplinary may be temporarily suspended to deal with the grievance. Where the issues are related it may be appropriate to deal with issues concurrently.

Action – this may also require an amendment to a disciplinary and grievance policies as many employers have their own approach to how they deal with such situations.

A new section explaining that the Code does not apply to collective grievances.

Comment

Acas plan to revise their non-statutory Guide, which accompanies the Code of Practice. They intend to publish this on their website as soon as possible. Hopefully this will clarify some of the more controversial new elements of the Code.

Click on the following link to access the revised Code. http://www.acas.org.uk/CHttpHandler.ashx?id=961&p=0

Val Dougan
Dundas & Wilson CS LLP
val.dougan@dundas-wilson.com

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
 
In association with
Related Video
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement

Mondaq.com (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of www.mondaq.com

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about Mondaq.com’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.

Disclaimer

Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.

Registration

Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to unsubscribe@mondaq.com with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.

Cookies

A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.

Links

This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.

Mail-A-Friend

If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.

Security

This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to webmaster@mondaq.com.

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to EditorialAdvisor@mondaq.com.

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at enquiries@mondaq.com.

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at problems@mondaq.com and we will use commercially reasonable efforts to determine and correct the problem promptly.