Marsha Thompson answers your questions on the law relating to the new Acas Code of Practice following the repeal of the statutory dismissal procedures.
Q: My employee’s one-year fixed-term contract is expiring and I am not renewing. Will I have to use the statutory dismissal procedures and give her the right to appeal?
MT: Under the old regime, employers had to follow the statutory dismissal procedures on the expiry of a fixed-term contract. Since the introduction of the new Acas Code (April 6, 2009), you do not need to follow any formal procedures. However, it would be wise to advise the employee of the reason for non-renewal (and minute the meeting). This would ensure supporting contemporaneous evidence of the real reason for non-renewal if the employee claims your failure to renew was a discriminatory act.
Q. An employee of five years has been spending a lot of work time online despite our policy restricting personal internet use to lunchtimes. I would envisage giving her no more than a written warning. Do I still need to follow the Acas Code?
MT: Unlike the statutory dispute procedures, the Acas disciplinary procedure applies to all formal disciplinary proceedings, including warnings, as well as dismissals. You should:
- Inform your employee of the problem in writing giving sufficient detail.
- Arrange a meeting to discuss the problem and evidence - give her reasonable time to prepare.
- Allow her to be accompanied at the meeting by a trade union representative or colleague.
- Give her the opportunity to ask questions, present evidence and call witnesses.
- Allow her the right of appeal against your decision.
Ensure you monitor all employees’ internet use before disciplining her. If she can show other colleagues, particularly male employees, are also flouting the internet policy you may be open to an unfairness complaint or sex discrimination at work complaint.
Q: What happens if I dismiss my employee without complying with the new Acas Code?
MT: Failure to comply with the old statutory disciplinary/dismissal procedures constituted automatic unfair dismissal (where employees had at least one year’s continuous service). If you now dismiss your employee without following the Acas Code, it is not automatic unfair dismissal. However, the Employment Tribunal on hearing a claim relating to the dismissal would take your failure to comply into account in determining whether a fair procedure had been followed. If an employer or an employee unreasonably fails to adhere to the requirements of the Acas Code, the Tribunal can increase or decrease compensation by up to 25 per cent.
This article was published in The Argus, April 2009
The information in this article is provided as general guidance only. The law in this area is regularly subject to change, challenge and update. You should always check the up-to-date position and if appropriate seek further specialist advice.
