The new ACAS code on Disciplinary and Grievance Procedures (the "Code") will come into effect on 6 April 2009 when the current statutory disciplinary and grievance procedures are abolished. The first draft of the Code was published in May 2008 and the second (and latest) draft was published in November 2008. The Code is currently awaiting Parliamentary approval, but should be adopted in its current form.
The Code provides a significant overhaul to the current, much maligned, statutory procedures that were introduced by the Employment Act 2002. What follows is a summary of the key changes to the Code that will come into effect in April this year.
Significant Changes
Tribunals will be able to make an adjustment of up to 25 per cent of the award made if an employer/employee unreasonably fails to follow the guidance in the Code, but (unlike the current situation) failure to follow the Code does not automatically make an employer liable to proceedings. Currently, Tribunals can make an adjustment of up to 50 per cent.
Also, significantly, a dismissal will no longer be automatically unfair if the correct procedures are not followed. This is likely to result in less claims being brought to tribunal stage for a minor technical breach in procedure.
Unlike the current procedures, the new Code provides greater flexibility for employers to deal with grievance and disciplinary matters. Rather than the current 'three step procedure', the Code, as an introduction, lists a number of elements that both employers and employees should take into account when dealing with disciplinary/grievance matters. These elements include raising and dealing with issues promptly and acting consistently.
Discipline
The Code lists 6 key points in handling disciplinary issues. These are:
- Establish the facts of the case;
- Inform the employee of the problem;
- Hold a meeting without unreasonable delay with the employee to discuss the problem;
- Allow the employee to be accompanied to the meeting;
- Decide on appropriate action; and
- Provide the employee with an opportunity to appeal.
The Code also identifies some special cases e.g. where an employee is charged with, or convicted of, a criminal offence.
Grievance
The Code lists 5 key points in handling grievance issues. These are:
- Let the employer know the nature of the grievance;
- Hold a meeting without unreasonable delay with the employee to discuss the grievance;
- Allow the employee to be accompanied to the meeting;
- Decide on appropriate action; and
- Allow the employee to take the grievance further if not resolved.
The Code also deals with/addresses matters concerning the overlapping of grievance and disciplinary cases and collective grievances. The Code will not apply to cases of collective grievances.
Impact of the new Code?
It is hoped that the new Code will make the management of disciplinary issues, grievances and dismissals more flexible and hopefully result in less matters going to Tribunal. However, the same was said of the current statutory procedures, so only time will tell. On the positive side, the Code does encourage (where appropriate) the use of informal methods of dealing with disciplinary and grievance issues that occur at work, which will be beneficial to all involved. However, problems may arise. Some of the wording used in the Code appears to be very much open to deliberation. For example, the disciplinary meeting should be held without 'unreasonable delay'. What is considered to be 'unreasonable delay' will undoubtedly need to be resolved by case law. Whether the new Code will ultimately have a positive effect on this area of employment law remains to be seen.
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.
