UK: Revised ACAS Code Of Practice Approved

The Secretary of State has approved the new draft ACAS Code of Practice on discipline and grievances following public consultation. The new draft Code has been revised to take into account the changes proposed to be made to workplace dispute resolution procedures by the Employment Act 2008, which received Royal Assent on 13th November.

In the consultation, which ended in July this year, the draft Code was criticised for being too vague, which it was suggested, could have led to increased litigation. The revised Code has addressed some of these concerns by adding more detail, but this may have the effect of restricting flexibility and leave employers open to challenge when mistakes or omissions are made. Employers should now think about what changes are needed to disciplinary and dismissal, capability, performance and grievance policies in time for 6 April 2009 when the Code is likely to come into force.

Background to the Code

The Employment Act 2008 will abolish the current statutory disciplinary and dismissal procedures from 6 April 2009. Accordingly unfair dismissal rules will revert to the pre-2004 position. Where a Tribunal finds that a fair procedure has not been followed, the dismissal will be unfair but the Employment Tribunal will have a discretion as regards the size of the compensatory award and may reduce this to nil if it considers that following a fair procedure would have made no difference. Unlike the current statutory dispute resolution procedure, a failure to follow the revised Code will not give rise to an automatically unfair dismissal. Instead, the Tribunal will be able to adjust compensation awards by up to 25% where it finds that there has been an unreasonable failure to comply with any provision of the Code.

How the Code will impact on dismissals and discipline in the workplace

  • The Code covers both misconduct and poor performance situations. It does not apply to redundancies or expiry of fixed term contract dismissals, although these dismissals will, of course, still be covered by unfair dismissal laws. Awards for other claims such as for discrimination and unfair detriment in employment may be subject to the 25% adjustment in circumstances where the Code should have been followed.
  • The Code essentially retains the 3 step process laid out in the current statutory procedures. For example, for disciplinary dismissals an employer will still be obliged to inform the employee in writing about the disciplinary meeting, hold the meeting and give a right of appeal. Unlike the statutory procedures, claims to the Tribunal will no longer be barred for failing to raise a grievance before bringing the claim. Furthermore failure to follow the correct procedure will not result in an automatic unfair dismissal.
  • Employers should also take into account the separate ACAS booklet which contains more comprehensive guidance on dealing with disciplinary and grievance situations. Failure to follow this guidance will not be taken into account for the purposes of the 25% uplift but it may well be taken into account by the Tribunals when considering if a dismissal is fair.
  • The revised version of the new Code places more emphasis on employees having to behave reasonably and consistently; this helps to shift some of the responsibility away from the employer, so as to cater for unreasonable employees.
  • Employees and their representatives need to be "involved" in the development of rules and procedures for handling disciplinary and grievance situations. Note that "involved" does not mean that they have to "agree"; the original draft provided that such rules had to be agreed with Trade Unions or employees representatives.
  • The new Code suggests disputes could be resolved by a mediator. It also suggests written records should be kept during disciplinary and grievance cases. As these provisions are now in the Foreword to the Code and not the Code itself, failure to follow these suggestions will not be taken into account by the Tribunal for the purposes of the 25% adjustment to awards.

A few practical points to note from the revised new Code:

  • Where practicable, different people should carry out investigations and the disciplinary hearing.
  • The written notification of the disciplinary meeting to the employee should include copies of written evidence and may include any witness statements. Basically the letter should set out each of the allegations against the employee and should include copies of all relevant evidence that has been gathered, including any witness statements taken.
  • There is a new right for employees to call witnesses, which may prove controversial. As many employers do not allow this, a change may be required to your procedures.
  • Where an employee is persistently unable or unwilling to attend a disciplinary meeting without good cause, the employer may be able to make a decision on the evidence available. Notwithstanding this new provision, you should take care not to be too hasty in using this route.
  • A decision to dismiss should only be taken by a manager who has authority to do so.
  • As regards appeals, employees should submit written grounds of appeal prior to the appeal meeting and the person holding the appeal meeting should be a different manager from the manager previously involved in the case. The requirement in the original draft of the revised Code, whereby, whenever possible, a more senior manager should hold the meeting has been taken out.
  • The new Code recognises that grievances can be resolved informally without having to go through the formal procedure.
  • The Code does not apply to collective grievances and there is now a special procedure where a grievance arises during a disciplinary process.

Our thoughts...

Despite the abolition of the statutory procedures, it will be very important to follow a fair procedure when disciplining and dismissing employees. Note that the Code provides only the very basic principles of natural justice which all employers, whatever size, are expected to follow. Larger employers with greater resources will be expected to meet a level of fairness which goes beyond the basics set out in the Code.

Will employers find the new procedures easier to comply with? In practice, little should change given that the three step procedure and the reasonableness test remains. Employers faced with Tribunal claims may find them easier to defend because there will no longer be the threat of automatic unfair dismissal for failure to follow the correct procedure. Under the new regime, Tribunals will also have more discretion when making decisions on the fairness of any dismissal but along with this increased discretion comes less certainty for employers. Predicting the size of awards will be more difficult because of the Tribunals' wide discretion to reduce the award to nil if it finds a fair procedure would have made no difference, and because of the potential uplift of up to 25%. However, Tribunals are likely to be cautious about the extent to which they use the uplift, just as they have been under the current rules.

Links: ACAS Code; Employment Act 2008

Other relevant alerts:

May 2008 (ACAS publishes draft Code of Practice for consultation)

December 2007 (Employment Bill published)

This article is presented for informational purposes only and is not intended to constitute legal advice.

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.