ACAS publishes a new disciplinary procedure Code of Practice

14 November 2008

ACAS publishes a new disciplinary procedure Code of Practice.

On 7 November 2008, following months of consultation, the Advisory, Conciliation and Arbitration Service (“ACAS”) published its revised Code of Conduct on Disciplinary and Grievance Procedures (“the Code”). The Code, now approved by the Secretary of State, will have effect from 6 April 2009, subject to approval from Parliament. It will replace the, much derided, statutory dismissal procedures that came into force in October 2004. The Code introduces numerous changes and is, therefore, highly significant to both employers dissatisfied with their employees and vice versa.

Background
Currently, for an employer to dismiss or discipline his employee, or for an employee to raise a complaint against his employer, there are compulsory disciplinary and grievance procedures in place. These were introduced by the Employment Act 2002 and have only applied since October 2004. In brief, they provide for mandatory disciplinary and grievance procedures, which, if not followed would mean that a dismissal was automatically unfair or that the employee would be prevented from making a tribunal claim – depending on which procedure was applicable. The provisions also aimed to reward compliance, and/or punish non-compliance, with the procedures by raising or reducing the tribunal awards. They have not been regarded as a success.

The drafting of the new ACAS Code came about as a result of the Employment Bill and the Government’s review of workplace dispute resolution carried out last year. The Employment Bill should come into force in April 2009 whereupon the existing disciplinary and grievance procedures will be repealed.

The Code
The newly published ACAS Code makes the following changes (amongst others) to the disciplinary procedure:

• Guidance on investigations and who should conduct them
• Employee to be provided with written evidence prior to disciplinary hearing
• Guidance on what an employee can do at the meeting and how witnesses should be called
• Guidance on accompaniment at meetings and what the companion is allowed to do
• Spent warnings may still be relevant in some cases (follows case of Airbus v Webb)
• Employers should deal with appeals impartially and any appeal hearing should be dealt with by a manager not previously involved in the case

The following changes (amongst others) are made with regard to the grievance procedure:

• Emphasis placed on employee’s obligation to raise his grievance formally and in writing before taking the case to a Tribunal
• New guidance on accompaniment at meetings in line with the disciplinary procedure

Aside from the specific guidance and changes made to the procedures, the Code also makes a number of significant general changes. First, the Code makes clear that it no longer applies to dismissal due to redundancy. Second, it no longer applies to dismissal due to non-renewal of fixed-term contracts. Last, an unreasonable failure by an employer or employee to comply with the Code would result in an uplift or reduction, respectively, of tribunal awards by 25%.

Comment
The Code will introduce significant changes to the disciplinary and grievance procedures and the precise detail of these will require further analysis and consideration before any advice is given. Without going into detail, it should be welcomed that the Code aims to set the standard of reasonable behaviour as much as possible and provides that parties should seek to do all they can to resolve issues in the workplace.

The primary aim of the Code, like that of the statutory procedures, is to promote the improvement of employment relations in the workplace and time will tell whether this attempt is any more successful than the last.