This expanded factsheet goes into more detail about the procedures required under the new code of practice for disciplinary issues and dismissal which came into force on April 6, 2009.The Acas Code of Practice on Disciplinary and Grievance replaces the Statutory Dispute Procedures.
Disciplinary and dismissal procedures under the Acas Code
The Acas Code of Practice on Disciplinary and Grievance Procedures aims to simplify the much criticised Statutory Dispute Procedures. The Acas Code suggests parties ‘should’, rather than ‘must’ act in a certain way. An employer will no longer be found to have been automatically unfair if they do not follow the procedure. However, Employment Tribunals ruling on individual cases can:
- Increase compensation by up to 25 per cent where the employer has ‘unreasonably’ failed to follow the Acas Code.
- Reduce compensation by up to 25 per cent where the employee has ‘unreasonably’ failed to follow the Acas Code.
Changes in disciplinary and dismissal procedures under the Acas Code
There are some key differences between the old dispute procedures and those set out in the Acas Code:
- Unlike the old Statutory Dispute Procedures, the Acas Code only applies to misconduct and poor performance cases. It does not apply to dismissal on the grounds of redundancy or the non-renewal of a fixed-term contract. It is not yet clear if the non-renewal of a fixed-term contract for reasons of misconduct or poor performance is covered.
- An employer will no longer be found to have been automatically unfair if they do not follow the procedure. Now the question is whether the employer acted outside the band of reasonable responses in treating misconduct or poor performance as the reason for dismissal. The Tribunal will take into account the Acas Code in deciding on this issue.
- There is now no automatic extension of time for the employee to issue a claim in the Employment Tribunal, even if an appeal is ongoing. Under the old regime there were provisions for an automatic three-month extension. Therefore, the time limits are now all three months minus one day. This is from the date of dismissal or the discriminatory act or omission.
- The Employment Tribunal now has wider discretion to uplift or reduce compensation where either party has unreasonably failed to follow the code. The Employment Tribunal can now choose not to adjust compensation at all, or adjust it by up to 25 per cent where either party unreasonably fails to follow the code (the adjustment was previously 10 - 50 per cent and less only in exceptional circumstances).
Handling disciplinary issues under the Acas Code
The Acas Code sets out steps employers ‘should’ take when tackling misconduct and poor performance. Different procedural requirements apply to misconduct and capability issues. It is therefore essential managers properly identify when an employee’s inability to perform his or her duties amounts to poor capability and when it amounts to misconduct. Above all employers should seek to ensure they follow a fair procedure to defend against a claim of unfair dismissal.
Investigate the issue
The employer should conduct a reasonable investigation which may involve meetings with the employee or collecting evidence. If paid suspension is necessary, this should be as brief as possible. The employer should make it clear this is not in itself a form of disciplinary action, but a neutral act.
Inform the employee of the issues in writing
The letter should include the allegations of misconduct or poor performance and the possible consequences (including the risk of a dismissal where applicable). This should have sufficient detail for the employee to respond at a disciplinary hearing. Any written evidence used by the employer, including witness statements, should be provided to the employee.
Arrange a disciplinary meeting or hearing
A hearing should be scheduled without unreasonable delay, ensuring the employee has time to prepare. The letter should also set out the employee’s right to bring a companion, either a fellow worker or a trade union representative.
Hold the meeting
Managers, employees and their witnesses should make every effort to attend. If the employee is consistently unable or unwilling to attend, the employer should make a decision on the available evidence. Each side should give advance notice of any witnesses they intend to call. At the hearing the employer should explain the allegations and go through the evidence. The employee should be allowed to set out their case against their allegations. The employee should have reasonable opportunity to:
- Ask questions.
- Present evidence.
- Call relevant witnesses.
- Raise points about any information from witnesses.
Inform the employee of decision
This should be given in writing without unreasonable delay and notify the employee of their right to appeal. If misconduct or poor performance is established, a dismissal would only usually be appropriate if there has been a written warning and a final written warning. Gross misconduct can justify dismissal for a first offence, but not without following a disciplinary procedure. Where the outcome is a written warning, the warning should set out:
- Nature of the misconduct or poor performance.
- Improvement required.
- Timescale for improvement.
- How long they will remain in place.
- Consequences of further misconduct or failure to improve within the defined period.
Arrange an appeal hearing where necessary
The employee’s appeal should be in writing specifying the grounds of their appeal. If they bring a Tribunal claim without appealing, their compensation award may be reduced. The appeal should be heard without delay, where possible by a manager who has not been previously involved. The employee can bring a companion to the appeal hearing.
Notify employee of final decision
This should be in writing without reasonable delay.
For further information see Discipline and Grievance at Work: The Acas Guide. If you would like to discuss the law in relation to disciplinary issues and dismissal email Fiona Martin or call your local martin searle solicitors’ office on 01273 609911 (Brighton) or 0208 256 4490 (Croydon).
