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New Acas Code of Practice on Disciplinary and Grievance Procedures

Posted on 12th March 2009
New legislation

From 6 April 2009 a new approach to dealing with employee discipline, dismissals and grievances comes into force following the abolition of the statutory dispute resolution procedures. A new Acas Code of Practice on Disciplinary and Grievance Procedures takes effect and employment tribunals will have the discretion to adjust awards up or down by up to 25% where either party unreasonably fails to comply with the Code. Every employer needs to know about the changes introduced by the Employment Act 2008.

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the employment tribunal must take into account the guidance and principles set out in the Code

Acas Code | what is new?

As from 6 April 2009, the new approach to dealing with employee discipline, dismissals and grievances will be governed by the guidance set out in the new Acas Code of Practice on Disciplinary and Grievance Procedures. This Code replaces the previous 2004 Acas Code on discipline and grievance handling.

The important provisions of the new Code are:

  • A failure to follow the new Code does not in itself make the employer liable to proceedings. However, when deciding if a dismissal is fair, the employment tribunal must take into account the guidance and principles set out in the 45 paragraphs of the Code. The tribunal must consider whether a failure to follow the Code was unreasonable, taking into account factors such as the size and resources of the employer.
  • If the tribunal concludes that the employer unreasonably failed to follow the Code it has the discretion to increase the award of compensation by up to 25%. Likewise, if the employee has unreasonably failed to adhere to the Code, his or her compensation may be reduced by 25%. However, the Code has been criticised because it imposes very little on employees. Employers have far more obligations to observe, which will give employees more to argue about.
  • The new Code applies to disciplinary situations such as misconduct and poor performance. The Code also covers employee grievances being "concerns, problems or complaints that employees raise with their employer".
  • Dismissals for redundancy or the non-renewal of a fixed term contract are not covered by the Code. Nevertheless the employer must still act fairly. This means, for example, that current best practice advice relating to redundancy dismissals will still have to be followed to avoid claims of unfair dismissal.
  • It applies to all employers regardless of the number of employees employed.
  • The new Code sets out the principles of what an employer and employee should do to achieve a reasonable standard of behaviour. Unlike the 2004 Code it does not require employers and employees to follow mandatory steps.
  • The new Code permits employers to be flexible in how they decide to deal with each individual case. More comprehensive advice and guidance on dealing with disciplinary and grievance situations is set out in the new 73 page Acas booklet "Discipline and grievance at work: The Acas guide". Unlike the Code employment tribunals are not required to have regard to this booklet but it nevertheless provides good advice and guidance for employers to consider when dealing with specific cases. In practice employment tribunals will be all too familiar with the guide.
  • The Code seeks to encourage employers and employees to resolve issues informally wherever this is possible. It suggests that both should consider using an independent third party, including external mediators, to resolve disputes.
  • There is greater emphasis on employers and employees behaving reasonably and consistently.
  • There are new sections on dealing with overlapping grievance and disciplinary cases and collective grievances.

Disciplinary and grievance procedures | the main changes

In relation to disciplinary (including dismissal) procedures the main changes include:

  • In misconduct cases, the Code stresses the importance, where possible, of different people carrying out the investigation and the disciplinary hearing.
  • When the employee is informed of the allegation or problem, they should also be provided with copies of any written evidence, such as the witness statements.
  • The procedure for holding a disciplinary hearing with an employee is more detailed. For example, the guidance now provides that there should be an opportunity for witnesses to be called, but this is still not a mandatory obligation.
  • There is updated guidance on what "a reasonable request" to be accompanied means and on what the companion may and may not do during the disciplinary hearing.
  • Ensuring that the decision to dismiss is only taken by a manager who has the authority to do so.
  • Permitting employers to make a decision on the evidence available where an employee has persistently been unable or unwilling to attend a disciplinary meeting without good cause.
In relation to grievance procedures, the key change is the guidance on being accompanied at a grievance hearing.

For the full copy of the new Acas Code visit the Acas Code page.

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