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Handling misconduct or poor performance under the Acas Code

Posted on 12th March 2009
HR practice

Below is a summary of how to handle misconduct or poor performance issues based on the new Acas Code.

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Simon Quantrill Simon
Managing Partner Telephone: 01473 688100

the Code reflects current best practice and established case law principles

Handling misconduct or poor performance

The new Code of Practice on disciplinary and grievance procedures contains provisions which will be familiar to experienced employers. The Code reflects current best practice and established case law principles. The Code emphasises the importance of the employer carrying out a reasonable investigation about the issues. This may involve investigatory meetings with the employee under investigation or it may simply involve the collation of other evidence. The scope of the investigation will be influenced by the seriousness of the issue and the size and resources of the employer. In practice this means that the more serious the issue the greater care and detailed investigation will be required. The larger employer will be expected to do more than, say, a small owner managed business.

The Code emphasises that if there is a case to answer the employee should be notified in writing of the alleged misconduct or poor performance and its possible consequences (including, where appropriate, the risk of dismissal) in sufficient detail to enable him or her to respond at a disciplinary hearing. Any written evidence, which may include witness statements, should be provided to the employee.

The notification to attend a disciplinary hearing should be sent out in good time. The disciplinary hearing itself should be held without unreasonable delay while ensuring the employee has reasonable time to prepare his or her case. The letter should also remind the employee of his or her right to bring a companion (either a fellow work colleague or an appropriate trade union representative) to the hearing.

There must be a disciplinary meeting or hearing

The Code reminds employers that a fundamental requirement is that a decision whether to dismiss or take other disciplinary action should not be taken without a disciplinary hearing or meeting being held first. The Code emphasises that managers, employees and their companions must make every effort to attend the meeting.

If the employee is persistently unable or unwilling to attend without good cause, the employer is permitted to make a decision on the available evidence.

Conducting disciplinary hearings

At the hearing the employer should explain the complaint against the employee and go through the evidence that has been gathered. The employee should be allowed to set out their case and answer any allegations that have been made.

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.

Informing the employee of the decision

Following the disciplinary hearing or meeting, the employer's decision should be sent to the employee in writing without unreasonable delay. Written warnings should set out the nature of the misconduct or poor performance, the improvement required and the timescale for improvement. The warnings should also specify how long they will remain current and the consequences of further misconduct (or failure to improve) within that period.

If misconduct or poor performance is established, a dismissal would usually only be appropriate if there has been a written warning and a final written warning. Gross misconduct can justify dismissal for a first offence but not without following a fair disciplinary procedure first.

The employee's right to appeal

Employees must be given a right of appeal. This right now includes a right to appeal against a warning, not just dismissal. Employees should let employers know the grounds of their appeal in writing.

Appeals should be heard without unreasonable delay and ideally at an agreed time and place.

Appeals should be dealt with impartially and wherever possible by a manager who has not previously been involved the case. Employees should be informed in writing of the results of the appeal hearing as soon as possible.

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