The code of practice for disciplinary issues and dismissal came into force on April 6, 2009. The Acas Code of Practice on Disciplinary and Grievance replaced the Statutory Dispute Procedures. This factsheet explains the Acas disciplinary procedure including the role of the Acas disciplinary hearing and suspension letter and the Acas dismissal procedure.
The Acas Code of Practice on Disciplinary and Grievance Procedures simplified the much-criticised Statutory Dispute Procedures. The Acas Code suggests parties ‘should’, rather than ‘must’ act in a certain way. However, Employment Tribunals ruling on individual cases can:
The Employment Tribunal has wider discretion to uplift or reduce compensation where either party has unreasonably failed to follow the code. The Employment Tribunal can also choose not to adjust compensation at all.
The Acas Code only applies to disciplinary situations, which includes misconduct and poor performance cases. It explicitly excludes dismissals on the grounds of redundancy or the non-renewal of a fixed-term contract. But, it is still not clear if the non-renewal of a fixed-term contract for reasons of misconduct or poor performance is covered. In addition, an Employment Tribunal found that its application is not necessarily limited to misconduct or poor performance and applied to a Some Other Substantial Reason dismissal because this type of dismissal was not specifically excluded in the Acas Code.
The Acas Code sets out steps you as employers ‘should’ take when tackling misconduct, poor performance and possibly some other substantial reason dismissals. Different procedural considerations apply to misconduct and capability issues. It is therefore essential that 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, as employers, you should seek to ensure that you follow a fair procedure to defend against a claim of unfair dismissal.
You should conduct a reasonable investigation which may involve meetings with your employee or collecting evidence. If paid suspension is necessary, the suspension should be as brief as possible. You should make it clear (preferably in writing – Acas suspension letter) that suspension is not in itself a form of disciplinary action, but a neutral act.
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.
A hearing (sometimes called an Acas disciplinary hearing) should be scheduled without unreasonable delay, ensuring your employee has time to prepare. The letter should also set out your employee’s right to bring a companion, either a fellow worker or a trade union representative.
Managers, employees and their witnesses should make every effort to attend. If your employee is consistently unable or unwilling to attend, you should make a decision on the available evidence. Each side should give advance notice of any witnesses they intend to call. At the hearing, you should explain the allegations and go through the evidence. Your employee should be allowed to set out their case against the allegations. Your employee should have reasonable opportunity to:
This should be given in writing without unreasonable delay and should notify your employee of their right to appeal. If misconduct or poor performance is established, a dismissal would only usually be appropriate if this is gross negligence or gross misconduct (Acas gross misconduct). This can justify dismissal for a first offence, but not without following a disciplinary procedure. Where the outcome is a written warning, including a final written warning, this warning should set out:
Your 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. Your employee can bring a work colleague or trade union representative to the appeal hearing.
This should be in writing within a reasonable timescale making it clear that this decision is final unless the company has a two-tiered appeal policy.
Martin Searle Solicitors is the trading name of ms solicitors ltd, which is authorised and regulated by the Solicitors Regulation Authority, and is registered in England under company number 05067303.© 2021