ACAS Code of Practice - Disciplinary and Grievance Procedures
A guide to the changes made by ACAS in 2006 to the disciplinary and grievance procedures
On 6 April 2009 the three step disciplinary and grievance procedures were abolished. They were notoriously difficult to follow and failure to do so could result in higher awards in the Employment Tribunal - an uplift in compensation to a maximum of 50% could be awarded.
It is important to note that if your company has any outstanding issues regarding discipline/grievance which began before 6 April 2009, then the old three step procedure applies (letter, meeting and right of appeal). During this transitional period ACAS make both old and new Codes available to download so that employers are able to access both.
In addition to the Code, ACAS have produced a guidance booklet in order to steer employers/employees towards the most reasonable course of action in the circumstances. However, the Employment Tribunal does not refer to this guidance booklet, it is merely a tool for employers and employees to refer to, giving more detailed advice.
Now the ACAS guidelines are there simply to help both the employer and employee and failure to adhere to them does not make a company or individual liable to proceedings. However, if a claim is brought in the Employment Tribunal, the Tribunal will take the code into consideration and if it feels that the employer or employee unreasonably failed to comply with the guidelines, they can reduce or increase compensation sums awarded by 25%.
It is important to note that ACAS have separate guidelines for redundancy dismissals and the non-renewal of fixed term contracts which referred to in these instances.
The ACAS Code recommends that employers have a disciplinary and grievance procedure outlined for themselves and their employees to refer to. This could be made available on the company intranet or perhaps in a staff handbook. This helps employers to be consistent when dealing with issues of conduct or when handling grievances, especially in larger companies where more than one person handles disciplinary and grievance matters (for example line managers and team leaders).
The ACAS Code states that any issue of discipline/grievance must be dealt with promptly without any unreasonable delay, including the initial investigation, meetings and confirmation of any decisions made; that employers must act consistently; and that employers must establish the facts of the case, give the employee the opportunity to state their case, allow them to be accompanied to any meetings held and give the employee the right to appeal against any decision made.
In terms of disciplining an employee, the process that an employer should follow should include:
1 Ascertain whether there is indeed a disciplinary issue. This may require initial investigatory meetings (which the employer may require the employee to attend) or simply gathering evidence in relation to the issue. It is important to note that if you require an employee to attend an investigatory meeting, no disciplinary action must be taken as a result of that meeting as it is merely to establish certain facts that may be used in evidence at the following “disciplinary meeting”. If possible, as the employer is to remain impartial, a different person should conduct the investigatory and disciplinary meetings.
2 Notify the employee of the disciplinary issue in writing. This letter should include details of the allegation and potential outcomes of the meeting (for example if the employee is accused of a gross misconduct offence the consequence could be dismissal). The letter should set out the time and place of the meeting (which should be mutually convenient) and the employee should be reminded of their right to be accompanied at it. Any evidence that has been collated should be enclosed with the letter.
3 Conduct the disciplinary meeting without unreasonable delay. The employer should however allow the employee enough time to read through any evidence they have sent and to prepare their case/defence.
4 Give both parties the opportunity at the meeting to present their case, including allowing time for any witnesses called to be cross examined. If witnesses are to be called to the meeting then each party should give proper notice of this in advance in order that arrangements can be put in place. The role of the companion at the meeting is to address the meeting, summarising the employee’s case and to confer with the employee. The companion must not answer questions in place of the employee or address the meeting if the employee does not wish this. The companion must not prevent the parties from putting forward their cases.
5 Once the meeting has finished the employer must go away and make a decision based on the evidence that was presented at the meeting. This decision must then be confirmed to the employee in writing, notifying them of their right to appeal.
6 Any appeal hearing should be held (if possible) by someone other than the person who conducted the disciplinary meeting (in order to maintain impartiality).
In relation to an employee’s grievance, the following procedure should be followed:
1 If an employee comes to an employer with a grievance which is not possible to resolve informally, the employee must raise a grievance with the employer in writing. This must be done without unreasonable delay.
2 A meeting must then be held in order to hear the employee’s grievance. The employee is allowed to exercise their right to be accompanied at that meeting and must make a reasonable request to do so.
3 The employee must set out what their grievance is at the meeting and how they would like it to be resolved. It may be necessary for the employer to adjourn the meeting in order to conduct an investigation into the employee’s claims.
4 The employer must make a decision as to the appropriate course of action (if any) to take. This must be communicated to the employee without unreasonable delay.
5 If the employee is not satisfied with the outcome of the grievance, then they have the right to appeal against the employer’s decision. In the same way as in the disciplinary process, an appeal hearing should be held and the employee is again allowed to be accompanied at such hearing. It is wise, wherever possible, to have a different person conduct the appeal to the person who conducted the initial grievance meeting. Again, the results must be communicated to the employee in writing.
This process does not relate to collective grievances, which must be dealt with in accordance with the employer’s collective grievance procedures.