On 6 April 2009, the statutory dismissal and disciplinary procedures were repealed and therefore an employer is not required to follow them for ‘trigger events’ occurring on or after that date. However, an employer is still required to follow a fair and reasonable process as set out in the revised ACAS Code of Practice on disciplinary and grievance procedures.
If an employer unreasonably fails to follow a fair procedure and the issue ends up at an employment tribunal, then the employee’s compensation could increase by up to 25%. Conversely, if an employee fails to follow the guidance then any compensation can be reduced by up to 25%. You can still continue to follow the statutory procedures if you so wish and therefore any existing contracts of employment containing the statutory disciplinary procedures do not have to be altered.
The ACAS Statutory Code of Practice
The ACAS Statutory Code of Practice provides basic practical guidance on handling disciplinary and grievance procedures. It sets out the basic requirements of fairness and intends to provide the standard of reasonable behaviour and the Code emphasises the following:
- Employers and employees should raise and deal with issues promptly and should not unreasonably delay meetings, decisions or confirmation of those decisions.
- Employers and employees should act consistently.
- Employers should carry out any necessary investigations, to establish the facts of the case.
- Employers should inform employees of the basis of the problem and give them an opportunity to put their case in response before any decisions are made.
- Employers should allow employees to be accompanied at any formal disciplinary or grievance meeting (although this need only be by a fellow worker or trade union representative).
Key points and guidance for handling disciplinary issues
The Code stipulates a number of key points that should be followed:
- Establish the facts of each case – it is important to carry out necessary investigations without unreasonable delay to establish the facts of the case which may be the collation of evidence or the calling of an investigatory meeting with the employee before proceeding to any disciplinary hearing.
- Inform the employee in writing with sufficient information about the alleged misconduct or poor performance including copies of any written evidence, and its possible consequences. The notification should also give details of time and venue for the disciplinary meeting and notify them of their right to be accompanied.
- Hold a meeting with the employee without unreasonable delay whilst allowing the employee time to prepare their case.
- Allow the employee to be accompanied (by a fellow worker or trade union representative).
- Decide on an appropriate action after the meeting. Where misconduct is confirmed or the employee is found to be performing unsatisfactorily it is usual to give a written warning with a notification of how long it will remain current. They should also be told of the consequence of further misconduct. A further act of misconduct or failure to improve within a set period would normally result in a final written warning. Where the conduct is sufficiently serious, it may be appropriate to move directly to a final warning. If a decision is made to dismiss, the employee should be informed as soon as possible of the reasons for the dismissal, the date on which the employment contract will end, the appropriate period of notice and their right of appeal. Where there is deemed to be gross misconduct, a fair disciplinary process should always be followed before dismissal.
- Provide the employee with an opportunity to appeal
The Code also provides the following guidance re handling grievances:
- Where an employee has a grievance they should where possible try to resolve it with the employer. If they are unable to resolve it they should raise the matter in writing.
- Hold a meeting with an employee to discuss the grievance
- Allow the employee to be accompanied
- Decide on an appropriate action and communicate the decision in writing. The employee should also be advised that they can appeal.
- Allow the employee to appeal
