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Grievance Procedures were repealed, at long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.
Grievances
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.
Copyright 2006 - 2010
Taylors Solicitors
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