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The Acas code and potential headaches to watch out for

Posted on 12th March 2009
New legislation

Whilst it is fair to say that best practice advice should not change greatly in light of the new law, there are a number of potential headaches which arise from the wording of the new Acas Code of Practice. Some are explained below:

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Simon Quantrill Simon
Quantrill
Managing Partner Telephone: 01473 688100

Involving employees in developing procedures

The new Acas Code states that employees and, where appropriate, their representatives (e.g. a recognised trade union) should be 'involved' in the development of disciplinary rules and procedures and that employers should help employees and managers understand those rules and procedures, where they can be found and how they are to be used (see paragraph 2 Acas Code).

The Code is not specific about how to involve employees and does not explicitly require employers to seek employees' agreement. Neither is it clear why the Code refers to involving employees and their representatives rather than employees or their representatives.

In practice, where an employer has failed to put any written procedures in place or puts procedures in place without involving employees, this could technically be a breach of the Code, even if the employer ultimately follows a fair procedure. It is not clear what view tribunals will take of this, especially where the employee has not suffered any additional injustice as a result.

The Code is not clear about whether employers should consult over existing procedures if they were put in place without any employee involvement.

Evidence at disciplinary hearings

Employers should consider changing how they deal with certain aspects of a disciplinary hearing or meeting. The new Acas Code recommends two significant steps, which if not followed may well result in the employment tribunal deciding to award an uplift on the compensation of up to 25%.

Reviewing the charges and evidence

The Code requires employers at the start of the hearing to 'explain the complaint against the employee and go through the evidence that has been gathered'. This stage has often been ignored in the past, or taken as read since the employee should already have been given the opportunity to digest this information. The prudent employer should consider complying with this stage unless they feel confident of persuading an employment tribunal that it was reasonable not to do so.

Allowing the employee to call witnesses

The Code provides that employees should be given 'a reasonable opportunity to ask questions, present evidence and call relevant witnesses'. Whilst asking questions and presenting evidence has always been viewed as essential to natural justice, the right to call witnesses to the hearing is not. Case law has established that a disciplinary hearing is not a quasi-judicial process and it would usually have been considered sufficient for the employer to interview witnesses (including those whose evidence favours the employee) as part of its investigation and to rely on their statements at the hearing without having to call the witnesses themselves.

There is no specific requirement for the employer to call its own witnesses or to allow the employee to cross-examine them. The Code does not even explicitly state that employees must be allowed to question their own witnesses directly, merely that they be allowed to 'call' them. This may give the employer some control over the conduct of the hearing. However, the employee should be permitted to 'raise points about' a witness's testimony.

In practice, if the employee challenges the evidence of a witness who is not present at the hearing, the prudent employer should consider adjourning the hearing to re-interview the witness in the light of any new information presented by the employee.

We envisage that the Code's provisions relating to the calling of witnesses may well be a source of unwelcome conflict between the employer and the employee and in particular an employee's trade union representative.

Appeals against warnings

Under the old statutory dismissal and disciplinary procedures the right of appeal against a warning did not apply and there were no further consequences if an appeal hearing was denied. Under the new regime a failure to allow a right of appeal against any disciplinary action, including a warning, is a breach of the new Acas Code. It could therefore increase compensation in the tribunal if the employee brings a successful claim (such as constructive unfair dismissal) based on the disciplinary action.

Uncertainty about levels of compensation

Many employment lawyers, including ourselves, believe that difficulties and uncertainty may arise about how the employment tribunals will exercise their wide discretion in relation to the uplift or reduction in compensation. What will amount to an unreasonable failure to follow the Code? In practice this will lead to considerable uncertainty for employers and employees until case law has developed and may make it difficult to advice on appropriate figures for settlement of claims.

It can be anticipated that employee representatives will do their best to identify unreasonable breaches of the Code and in turn seek to apply a 25% uplift to the value of their clients' compensation claim. Likewise employer solicitors are going to want to identify employee breaches of the Code which will then let them argue that the award of compensation is likely to be reduced by up to 25%! The difficulty is that the obligations on employees are limited compared to what employers are obliged to do.

Timed warnings

The Code suggests the employer should specify a period after which a warning will lapse. However, there are cases when a warning might not warrant an expiry date. Will a failure to impose an expiry date attract an uplift?

Do all you can

The Code states that employers and employees should do "all that they can" to resolve disciplinary and grievance issues in the workplace and that "recourse to an employment tribunal should only be of a last resort". The Code seeks to encourage both parties to use a third party to resolve problems. We see potential here for employees and employers to argue that one or other has not done all they could to have avoided the employment tribunal. Perhaps raising a grievance after resigning will still be an option? Will without prejudice negotiations be relevant to show how far the employer or employee went to avoid the employment tribunal? 

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