Q. What will the changes to the disciplinary and grievance procedures mean for my business?

A. On 6 April 2009, the ‘three step’ mandatory statutory grievance and disciplinary procedures were repealed. There was much rejoicing. Employers and employees will now be expected to follow the new ACAS Code of Practice when resolving workplace disputes. The code does not apply to redundancy dismissals, or to the expiry of fixed term contracts.  

Essentially, the code requires the employer to:

•    act consistently and without unreasonable delay;•    investigate the facts before taking action;•    inform the employee of any allegations against them in writing and give them the opportunity to respond to the allegations before any decision is made;•    invite the employee to a meeting to discuss the situation; •    deal with misconduct and poor performance issues by giving a number of warnings prior to dismissal, unless the misconduct or poor performance is sufficiently serious to move straight to a final warning or summary dismissal;•    offer the employee the opportunity to appeal any decision. The employee should set out the grounds of their appeal in writing.

The code encourages the use of mediation at an early stage to avoid problems escalating. It also encourages employers to develop their procedures in consultation with employees and their representatives. You should therefore consider reviewing your current policy and involving employees and their representatives when doing so.

The new code does not affect employees’ statutory right to be accompanied to formal disciplinary and grievance meetings. It does, however, require employers to notify employees of their right to be accompanied. It also allows employees (and employers) to call and question witnesses at disciplinary hearings. This is a departure from the current procedures, and could result in the hearings becoming more akin to court proceedings.  

The new regime puts less emphasis on technical failures to comply with procedures and offers greater flexibility. However, if the Employment Tribunal considers that either party’s failure to comply with the code was unreasonable, it could adjust any award up or down by up to 25 per cent. The size and resources of the employer organisation will be taken into account when assessing compliance.

The code runs to a manageable 11 pages. However, ACAS has also published a non-statutory guide to the code. This is considerably longer, but contains useful practical tips, flowcharts, etc. It encourages employers to train managers in the use of the new procedures. Although it is intended to be merely a guide, it is likely that the tribunal will take it into account when interpreting the code. Employers should therefore read the guidance as well as the code when dealing with any issues.

A final note of caution. We cannot forget about the old procedures just yet. They will still apply to any disciplinary and grievance procedure initiated prior to 6 April 2009 and to any grievance where the subject matter of the grievance occurred prior to 6 April 2009.

Will Winch is a solicitor in the employment group at Mishcon de Reya

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