UK: 12 Things You Need To Know About The New Acas Code

1. When does it come into force?

6 April 2009

2. What does it replace?

The Acas Code (Code) will replace the statutory dismissal, disciplinary and grievance procedures which have been in place since 2004.

Unlike the statutory procedures the new Code is not legally binding and a failure to follow the Code will not automatically result in a penalty. However, Tribunals will expect parties to follow the Code.

3. What is the status of the new Code?

The Code has been approved and is now in its final form.

4. Who does the Code apply to?

As with the statutory procedures the Code applies only to employees in a legal sense (those who work for an employer under a contract of employment) and will not cover, for example, agency workers, self employed individuals or those employed under a contract for services.

5. What situations does the Code cover?

The Code covers disciplinary situations including misconduct and/or poor performance. It also covers all concerns, problems or complaints that employees raise with their employers in the form of grievances.

The Code explicitly excludes dismissals on grounds of redundancy or the non-renewal of a fixed-term contract.

6. If the Code is not legally binding, do we need to comply?

Even though the Code is not legally binding, it still has teeth. The employment tribunal has the power to increase or reduce an award by up to 25% if either the employee or employer unreasonably fails to follow it.

7. With the introduction of the new Code will I be able to forget the statutory procedures completely?

Unfortunately not. Even after the introduction of the Code there will be a transitional period where the statutory regimes apply in certain circumstances, where the "trigger event" occurs before 6 April 2009. There are different "trigger events" depending on whether this relates to discipline or a grievance. The transitional provisions are complicated and it is best to seek legal advice in these circumstances.

8. What does the Code say about disciplinary procedures?

The Code on disciplinary situations is organised under 6 sections: establishing the facts of each case, informing the employee of the problem, holding a meeting with the employee to discuss the problem, allowing the employee to be accompanied at the meeting and also allowing an employee to call witnesses to the meeting and raise points about any information provided by any witnesses, deciding on appropriate action and providing employees with an opportunity to appeal.

The employer is under a duty to collate evidence on the allegations made against the employee and fully explain the complaint at the disciplinary hearing.

Under the new regime, a failure to allow a right of appeal against any disciplinary action, including a warning, is a breach of the Code.

9. What does the Code say about grievances?

As with the statutory procedures, under the Code the employee should raise their grievance in writing if attempts to resolve the grievance informally are unsuccessful. The employer should then hold a meeting, inviting the employee to investigate the complaint. The employee has a statutory right to bring a companion (a fellow worker or trade union representative) to a grievance meeting. The employee's request to be accompanied must be reasonable.

If the matter needs further investigation, the employer should consider adjourning the meeting and resuming it after the investigation has taken place. When the meeting is concluded, the employer should communicate its decision in writing without unreasonable delay.

The employee has a right of appeal if they are not satisfied with the outcome. The appeal should be notified to the employer in writing and the appeal hearing should be (where possible) conducted by a manager who has not previously been involved. The employer's final decision should be communicated to the employee without unreasonable delay.

10. What are the potential headaches in relation to the Code?

The Code states the employees should be "involved" in the development of disciplinary and grievance procedures and that employers should help employees and managers to understand how they are to be used. The Code is not specific about how to involve employees but technically, where an employer has failed to put any written procedures in place, or has put procedures in place without involving employees, this could be a breach of the Code, even if the employer ultimately follows a fair procedure. We shall have to wait and see what view tribunals will take of this, especially in situations where the employee has not suffered any additional injustice as a result.

The Code is also silent as to whether it should be followed in relation to grievances received from former employees after termination of their employment. Assuming that the Code does not apply, employees should bear in mind the possibility of reductions in awards if they do not raise grievances before resigning. If the Code does apply, employers may be exposed to the uplift if they do not respond to a grievance initiated after the end of the employment relationship. A cautious approach would be to treat the Code as applying to these situations, assuming that it would go against the spirit of the Code if it did not apply.

In a grievance meeting or disciplinary hearing an employee has the right to be accompanied by a companion who is either a fellow worker or trade union representative and also to call witnesses and raise points about any information provided by them. There has been some suggestion that, under the Code, the employee and/or companion are entitled to cross examine witnesses. The Code is vaguely worded in this respect but most commentators have taken the view that giving an employee "a reasonable opportunity to ask questions" and to "raise points about information provided by them" (i.e. witnesses) is far short of cross examination. Also, whilst what a companion can and cannot do is clearly set out in the Code, there is no mention of a companion being able to cross examine.

11. What happens if an employee raises a grievance during the disciplinary process?

Employees often submit grievances during disciplinary procedures, either regarding the procedure itself or the circumstances that lead up to the initiation of that procedure. Under the Code, employers can now decide whether to suspend the disciplinary procedure in order to fully investigate the grievance or, if the issues are related, deal with both of them concurrently.

12. How will the Code affect my business?

Best practice in dealing with discipline, dismissals and grievances should not change significantly in light of the Code. Nevertheless it is advisable to revisit your disciplinary and grievance procedures to ensure that they are compliant with the new provisions. Tribunals will now have regard to all the circumstances of a particular case, including the size and resources of an employer, when deciding relevant cases and it is acknowledged that it may not always be possible for employers to take all of the steps in the Code. This may provide some leniency to smaller employers but larger employers with specific HR or legal functions will need to proceed cautiously given the resources available to them.

Practically, informal resolution of disputes should be encouraged at the outset and communication between parties and fairness at all stages of a dispute is integral to the new Code.

Copies of the Code can be found at: http://www.acas.org.uk/CHttpHandler.ashx?id=272&p=0

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.