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Goodbye statutory procedures, hello ACAS code of practice
14 November 2008
The new ACAS Code of Practice (the Code has been approved by the Secretary of State for Business, Enterprise and Regulatory Reform, and will now go to Parliament for final approval.
It is expected to come into force in April 2009, when the statutory dispute resolution procedures are repealed.
The Code will not be legally binding, but is designed to help employers, employees and representatives deal with disciplinary and grievance situations in the workplace. A failure to follow the Code will not in itself make an employer or employee liable, but an employment tribunal will take the contents of the Code into account in unfair dismissal cases when deciding whether a party acted reasonably.
Although the current powers for tribunals to increase or decrease an award of compensation where one party has failed to follow the relevant statutory procedure will be swept away from next April, a tribunal will instead be able to make an adjustment of up to 25% if it feels that there has been an ‘unreasonable failure to comply with any provision of the Code’.
It means employers need to familiarise themselves with the Code and follow its good practice suggestions as the best defence against any future claim of unfair dismissal.
Although the Code is intended to provide the standard of reasonable behaviour in most instances it does recognise that, “… it may sometimes not be practicable for all employers to take all of the steps set out” in the Code. The size and administrative resources of an employer will always be taken into account by a tribunal so that what may be reasonable for a large employer to do will not be required of a much smaller organisation.
Key points on handling disciplinary issues from the Code are:
- deal with issues promptly and do not unreasonably delay meetings or decisions
- establish the facts of each case by carrying out any necessary investigations, this may involve having an investigatory meeting with the employee before any formal disciplinary meeting.
- inform the employee in writing of the basis of the problem and give them the opportunity to put their case before any decision is taken
- the employee should be informed of the possible consequences to enable them to prepare for the disciplinary meeting, and copies of any written evidence which are relied upon (including witness statements) should also be provided.
- allow employees to be accompanied by a work colleague or representative at any formal meetings
- act consistently by applying a similar level of penalty to similar cases, the employee should be informed in writing of the employer’s decision after any disciplinary meeting.
- always give employees the opportunity to appeal any decisions
The Code also has some helpful guidance on the following issues:
- where a written warning is given it should set out the change in behaviour or improvement in performance required (with a timescale) and the employee should be told how long the warning will remain current
- even where gross misconduct is suspected an employer should follow a fair disciplinary process before dismissing for that reason
- where an employee is persistently unable or unwilling to attend a disciplinary meeting without good cause the employer should make a decision on the evidence available
- where an employee is charged with or convicted of a criminal offence this would not in itself be a reason for disciplinary action, and consideration needs to be given to the effect of this on the employee’s suitability for their job and their relationship with work colleagues and customers
- where an employee raises a grievance during a disciplinary process the disciplinary process may be temporarily suspended to deal with the grievance; however, where the grievance is related to the disciplinary case it may be appropriate to deal with them together
The Code does not apply to dismissals for redundancy, and employers should refer to the ACAS booklet, Redundancy Handling for best practice guidance on such dismissals. Neither does the Code apply to dismissals which occur as a result of the non-renewal of fixed term contracts.
Grievances
After April 2009 it will no longer be a requirement for employees to bring a grievance before bringing a tribunal claim against their employer. However, all employers have a duty to deal with grievances raised by their employees.
The Code defined grievances as ‘concerns, problems or complaints that employees raise with their employers’, and contains guidance on handling grievances in the workplace.
The Code suggests that employees who raise a grievance should be invited to a meeting to discuss this, and how they think it should be resolved without unreasonable delay. Following the grievance meeting the employer should write to the employee setting out what action it intends to take (if any) to resolve the grievance. An employee should also be offered an appeal against this decision. Any appeal should be heard by an impartial manager who has not previously been involved with the case.
Comment
The statutory dispute resolution procedures have caused a huge headache for employers, employees and their lawyers, and few will shed any tears when they are abolished in April next year.
While they were introduced with the best intentions, namely to reduce the burden on the employment tribunal system by encouraging the resolution of disputes in the workplace, in reality exactly the opposite has happened.
Tribunals have been deluged with cases about the operation of the procedures themselves. Although the procedures were intended to be simple, it has proved all too easy to fall foul of the requirements and both employers and employees are penalised for even minor failures to comply to the letter.
With the introduction of the Code, the position will effectively revert to what it was before the statutory procedures were introduced in 2004 (albeit that the ability to adjust awards by up to 25% is new).
Tribunals will be able to use their discretion to a much greater extent than currently, and a dismissal will no longer be automatically unfair due to a lapse in procedure. It will be up to a tribunal to consider the circumstances and decide if the employer acted reasonably in dismissing the employee. Hopefully, this will give employers more latitude generally and enable tribunals to arrive at more common sense decisions.
If an employer can show that they complied with the requirements of the new Code they will be in the best position to defend any unfair dismissal claim.
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Kevin McCavish
Partner
T: 08700 86 8802
I: +44 (0)118 965 8802
E: kevin.mccavish@shoosmiths.co.uk