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Discipline and Grievances - Where Are We Now?Discipline and Grievances - Where Are We Now?

» Posted on: 21 April 2009
» Posted by: Oliver McCann
» Service area: Employment

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On the 6th April 2009 the Statutory Discipline, Dismissal and Grievance Procedures were repealed, at long last!! The statutory ACAS Code of Practice (“the ACAS Code”) replaces the old procedures with effect from 6th April 2009.

It is unlikely that anyone will miss the previous statutory procedures which were overly technical and rigid and which, if breached (no matter how minor) resulted in unjust penalties on employers.

Discipline and Dismissals
The ACAS Code applies only to disciplinary situations which is a narrower concept than the previous procedures which covered any dismissal situation. The ACAS code therefore applies to misconduct and poor performance situations. It expressly omits dismissals by reason of redundancy or by expiry of a fixed term. It is silent on incapacity dismissals, dismissals for some other substantial reason and illegality dismissals which should be determined having regard to general principles of fairness and reasonableness but which will not be assessed as against compliance with the ACAS Code.

An “unreasonable” failure to follow the ACAS code does not render the dismissal unfair but it may result in an uplift of any employment tribunal award up to 25%.

Key principles under the code:

  • Fairness and transparency
  • Act promptly and consistently
  • Investigate promptly and fully to establish the facts
  • Inform the employee fully of the allegations against him in writing providing a copy of all evidence to be relied upon at the hearing
  • Provide sufficient time for the employee to prepare for the disciplinary hearing
  • The disciplinary hearing should be conducted by a manager who was not involved in the investigation
  • Provide an opportunity to the employee to put their case forward before any decision is made allowing the employee to ask questions, present his own evidence and call witnesses
  • Allow employee to be accompanied
  • Confirm decision in writing with reasons
  • Warnings must set out what the issues were, what is required going forward and by when and the consequences of a failure to meet the standards required
  • Provide an appeal route which should, where possible, be impartial and provide decision in writing

One potential issue which may arise –that is the right to “call relevant witnesses” – what does this mean? Can an employee call a barrage of witnesses to give oral evidence or even cross examine witnesses which the employer may have gathered? The last thing you want is your disciplinary hearing becoming a quasi judicial process!

Another issue is to what extent an employment tribunal will assess your compliance with the ACAS Code in relation to previous warnings which may have been considered when deciding to dismiss? If you have failed to comply with the code in relation to those warnings will it result in an uplift if the dismissal if unfair? Could it render the dismissal unreasonable in itself?

Common pitfalls to avoid
Regularly we act for employers in unfair dismissal cases and the key areas where employers fall down upon are:

  • The investigation is inadequate – avenues which should have been explored have not, not all documentary evidence has been obtained which could be. The investigation is the corner stone of any subsequent disciplinary proceedings and as such a failure to do this thoroughly renders the resulting disciplinary process unfair. The key is to leave no stone unturned!
  • The disciplinary hearing is handled by the investigating officer – whilst this is sometimes unavoidable for small businesses, larger organisations are guilty of this basic point. Unless there is a reasonable reason why the investigating officer should hold the disciplinary hearing then the disciplinary hearing should always be handled by an independent person from the organisation.
  • A failure to investigate valid points raised at the disciplinary hearing – often an employee will raise a plausible explanation or suggest that documents may exist or witnesses are available who may be able to prove his innocence – where this occurs you should adjourn the disciplinary hearing and investigate those issues fully and reconvene once you have done so. Do not take the view that it is for the employee to prove his innocence – this is not the case.
  • A failure to furnish the employee with all the evidence long enough before the hearing to enable him to prepare his case – many organisations adopt a strategy of withholding evidence until the day of the hearing and giving the employee only 30 minutes or so prior to the hearing to consider the evidence – this too is unfair.

Changing the nature of the allegations part way through the process – if the allegations change, then cease the current process and start again.

The ACAS Code explicitly states that where matters cannot be resolved informally (suggesting employees should explore this avenue first) then the employee should raise the matter “formally”, in writing setting out the mature of the complaint. As such where you receive written correspondence which is vague as to its intentions then would be nothing wrong in responding to enquire whether or not the issues raised are to be treated as a formal grievance.

A meeting should be held with the employee in the first instance to understand the exact nature of the grievance and identify how they think the matter could be resolved. Consideration should then be given to adjourning the meeting for any investigation that may be necessary.

Following the meeting any decision should be communicated in writing with the right to appeal set out. The decision should set out its findings and inform the employee what action, if any, it intends to take to resolve the grievance.

The ACAS Code can be found here

To discuss you own internal procedures and how they fit in with the ACAS code or for any assistance on internal disciplinary or grievances please contact Oliver McCann.

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