The Employment Act 2008 came into force on 6th April 2009, replacing the unpopular Statutory Dispute Resolution Procedures (SDRPs). Employers must now follow the Acas Code of Practice on Disciplinary and Grievance Procedures in most situations when they are contemplating dismissing or disciplining an employee or dealing with a grievance. For the full Code click here. The main provisions are summarised below.
The Code emphasises that employers and employees should always try to resolve disciplinary and grievance issues in the workplace internally. Where this is not possible, they should consider using an independent third party as a mediator.
Where formal action proves necessary, both sides should act fairly, consistently and promptly. Employers should carry out any necessary investigations to establish the facts of the matter, inform employees of the issues and give them the opportunity to explain their case or enlarge on their complaint before any decision is made. Employers should allow employees to appeal against any formal decision.
Where an employer is contemplating dismissal or other disciplinary action against an employee, it should:
Investigate without unreasonable delay, and hold an investigatory meeting with the employee if necessary Inform the employee of the problem in writing in sufficient detail and with evidence to enable the employee to prepare to answer the case at a disciplinary meeting. Also provide the time and venue of the meeting and advise the employee of their right to be accompanied by either a colleague or a trade union representative Hold a formal disciplinary meeting at which both sides put their case After the meeting, decide whether any disciplinary action is necessary and inform the employee of its decision in writing Where misconduct is found, give the employee an oral or written warning, final written warning or notice of dismissal as appropriate Provide the employee with the opportunity to appeal and hold an appeal hearing without unreasonable delay, preferably with a manager who has had no previous involvement Inform the employee of the results of the appeal hearing in writing as soon as possible Grievance.
Where an employee feels they need to raise a formal grievance, the following process applies:
The employee should set out their grievance in writing without unreasonable delay and with a manager who is not the subject of the grievance The employer should hold a formal grievance meeting without unreasonable delay to discuss the grievance and advise the employee of their right to be accompanied.
An investigation may be necessary beforehand After the meeting, the employer should decide whether or not to uphold the grievance and inform the employee of its decision and proposed action (if any) in writing Where the employee feels their grievance has not been satisfactorily resolved, they should appeal in writing The employer should hold an appeal hearing without unreasonable delay, preferably with a manager who has had no previous involvement The employer should inform the employee of the results of the appeal hearing in writing without unreasonable delay
Employees no longer have to lodge a formal grievance before bringing certain claims against their employer or former employer in the Employment Tribunal.
The Code does not provide much assistance for employers in cases of summary dismissal for gross misconduct: it merely specifies that a fair disciplinary process should always be followed. To avoid breaching the Code, employers would be best advised to suspend the employee and implement an immediate disciplinary process before dismissing them for gross misconduct. Suspension has the same effect as dismissal in removing the employee from the workplace but allows the employer time to conduct a disciplinary process in accordance with the Code.
Right to be Accompanied
Employers have an active requirement to notify employees of their right to be accompanied to formal disciplinary or grievance meetings and should not unreasonably refuse the employee’s chosen companion. The Code is unclear as to whether an employee has the right to be accompanied at an investigatory meeting; employers would be best advised to err on the side of caution and consider such a request in accordance with the Code’s principles.
Failure to Follow the Code
Failure to follow the Code does not automatically make the dismissal or disciplinary action taken unfair and the employer therefore liable. The Code recognises that the size and resources of an employer may make it reasonable for them to depart from some of the provisions. But Tribunals will take the Code into account when considering all relevant claims.
Tribunals have the discretion to increase or decrease awards made by up to 25% if either the employer or the employee has unreasonably failed to comply with the Code.
The Code does not apply to dismissals for redundancy or on the expiry of fixed-term contracts, although employers should still ensure they consult employees and follow a fair procedure in these situations.
Employers should consider the need to update their internal disciplinary and grievance procedures to reflect the changes in the law and ensure they comply with the Code. Many internal procedures were changed to refer to the SDRPs and, although these are no longer legally binding, employers risk a challenge of breaching their own procedures if these are deemed contractual but are not followed.