A failure to follow the Code will not, in itself, make a person or organisation liable to proceedings, however, an unreasonable failure by a party to follow the Code may result in a Tribunal increasing or reducing any award by up to 25%.
The Code does not apply to dismissals due to redundancy or the non-renewal of fixed term contracts. The Code encourages employers to try to resolve disciplinary and grievance issues in the workplace but where this is not possible it is suggested that an independent third party should be used to resolve disputes, including external mediators.
Key principles to handling disciplinary issues
‘Fairness and transparency’ are key features of legitimate rules on grievance and disciplinary procedures. Acas suggest that employees and their representatives, where appropriate, should be involved in the development of rules and procedures. The particular circumstances of each case will be examined to conclude whether reasonable and/or justified action has been taken. Acas also realise that not all employers will be able to follow all the steps laid down in the Code and Tribunals will take into account the size and resources available to an employer when making a decision.
Notwithstanding that the Code suggests employers 'should' act in certain ways throughout the disciplinary process, many of the suggestions are in fact essential requirements of a fair disciplinary process and must be followed.
Acas outline elements that are necessary for a process to be considered ‘fair’:
- Employers and employees should raise and deal with issues promptly, without unreasonable delay;
- Employers and employees should act consistently;
- Necessary investigations should be carried out to establish the facts of the case;
- Employers should notify employees of any problems and give them an opportunity to respond before any decisions are made;
- Employers should allow employees to be accompanied to any disciplinary or grievance meetings;
- Employers should allow employees an appeal against any formal decision made.
In terms of the Code, the majority of the provisions are common sense but it is worthwhile reiterating certain of the fundamental principles.
The Code provides that, in cases where suspension is considered necessary, the period should be as brief as possible, should be kept under review and the employee should be advised that the suspension is not a disciplinary sanction. Suspension must be necessary and may not be appropriate even in a case of gross misconduct.
Employers should assess whether or not suspension is necessary in order to ensure, for example, that the investigation is not prejudiced or that the health and safety of employees or customers is protected. Suspension must not be a knee-jerk reaction.
When conducting an investigation into a disciplinary matter, an investigatory meeting may be required. This meeting should not automatically lead to disciplinary action being taken and although there is no statutory right to be accompanied to a formal investigatory meeting, such a right may be allowed under an employer’s own procedure. In misconduct cases, different people should conduct the investigatory and disciplinary hearings.
If, following investigation, there is a disciplinary case to answer, the employee should be notified of this in writing. The employee should be provided with enough information about the alleged misconduct or poor performance to be prepared to answer the case at the hearing. This should include copies of any written evidence gathered.
Workers have a statutory right to be accompanied at any disciplinary meeting which may result in:
- A formal warning being issued;
- The taking of some other disciplinary action; or
- The confirmation of a warning or some other disciplinary action i.e. at appeal hearings.
The accompanying person may be a colleague, trade union representative, or an official employed by a trade union. The employee does not have to be a member of a trade union in order to be entitled to be represented by a trade union representative. An employer is entitled to ask the representative for appropriate identification.
Where misconduct is established or the employee’s performance is found to be unsatisfactory a formal written warning may be issued. If the employee’s first misconduct or unsatisfactory performance is sufficiently serious, it may be appropriate to issue a final written warning. Verbal warnings are not referred to in the Code. However, it is still possible to issue a verbal warning prior to a written warning.
The Code provides some assistance to employers faced with a situation where an employee fails to attend a disciplinary hearing. Where an employee is persistently unable or unwilling to attend a hearing without good cause a decision may be made, in their absence, on the evidence available.
Where a decision to dismiss is taken, the employee should be informed as soon as possible of the reasons for dismissal, the date on which employment will terminate, the appropriate period of notice and their right of appeal. Even in instances of gross misconduct a fair disciplinary process should be followed.
An employee is entitled to appeal any disciplinary action and the grounds for their appeal should be put to the employer in writing. Wherever possible, the appeal should be heard by someone not previously involved in the case. Workers have a right to be accompanied to appeal hearings and should be notified in writing of the outcome.
Where an employee is charged with, or convicted of a criminal offence this may be a reason for disciplinary action, depending on the nature of the alleged offence. Consideration should be given to the effect the charge or conviction has on the employee’s suitability to do the job.
Key principles to handling grievances
If a grievance cannot be resolved informally it should be submitted in writing to a manager who is not the subject of the grievance. A meeting should be held without unreasonable delay to discuss the grievance and the worker has a right to be accompanied at the meeting.
Following the meeting, any decisions should be intimated to the employee in writing and where appropriate should outline any action the employer intends to take to resolve the grievance. The employee should be informed of their right to appeal the decision. Again, employees should intimate their wish to appeal and the grounds for such appeal in writing.
The appeal, where possible, should be held by a manager not previously involved in the process and the employee has the right to be accompanied. The outcome of the appeal hearing should be communicated to the employee in writing.
Overlapping grievance and disciplinary cases
Where an employee raises a grievance during a disciplinary process, the disciplinary process may be suspended to resolve the grievance or where they are related it may be appropriate to deal with both issues concurrently.
The provisions of the Code do not apply to grievances raised on behalf of two or more employees by a representative of a trade union or other workplace representative.
Employers should be aware that following the Code may not, in itself, guarantee a finding of procedural fairness. Depending on the circumstances, further steps may be required in order to ensure fairness and to comply with other legal obligations (including anti-discrimination rules). Advice should be sought in respect of each individual case.
To access the full Acas Code on Disciplinary and Grievance Procedures click on the link below: