On 6 April 2009, the Statutory Disciplinary and Grievance Procedures will be abolished. They will be replaced by a new ACAS Code of Practice on Disciplinary and Grievance Procedures (the "New Code"). This is not to be confused with the current 2004 ACAS Code which is still on the ACAS website. Guidance notes to accompany the New Code are expected.

DISCIPLINARY AND DISMISSAL PROCEDURE – WHAT'S NEW?

The most significant changes will be:

  • the sanction of "automatically unfair dismissal" for a procedural failure in a dismissal process will be abolished. This will have the consequential effect that:

    • employers will no longer be subject to what have often felt like procedural traps laid down under the current law;
    • the fundamentals of "fairness" and the employee being informed of the allegations and being given a fair opportunity to respond to them will of course remain. Nonetheless, a fundamental procedural failing may still lead to a normal "unfair dismissal" finding

  • the compulsory financial penalty of between 10% - 50% will be abandoned. Instead there will be an optional penalty of up to 25% under the New Code.

GRIEVANCE PROCEDURE – WHAT'S NEW?

The most significant changes will be:

  • the standard and modified grievance procedures will be abolished, meaning:

    • the compulsory obligations on both employer and employee will be removed
    • the liability for 25% - 50% uplift/reduction if the procedure is not correctly followed will be removed
    • employees will no longer need to bring a grievance before lodging a claim
    • there will no longer be an obligation on the employer to consider a grievance after an employee has left employment
    • the rules on time limits for bringing and defending claims will be simplified.

SO WHAT WILL THE NEW CODE MEAN FOR EMPLOYERS?

There will be an obligation on employers to follow the New Code but the New Code will be less prescriptive. The handling of disciplinary and grievance issues should comply with the principles of:

  • dealing promptly – both in addressing the issues and communicating the outcome
  • dealing consistently
  • carrying out necessary investigations
  • informing the employees of the basis of the problem and giving them an opportunity to put their case
  • allowing employees to be accompanied:

    • employees will continue to have a statutory right to be accompanied where the outcome could lead to a formal warning or other disciplinary action, and at appeal hearings:

      • companion can be a fellow worker, trade union representative or an official employed by a trade union
      • companion can address the hearing but not answer questions on the employee's behalf

    • no statutory right to be accompanied at investigatory meetings
    • request to be accompanied must be reasonable, e.g. would not be reasonable to insist on a particular person if that person may prejudice the hearing or be unavailable where someone else was suitable and available

  • offering the right to appeal.

Overlapping Grievances And Disciplinary Cases

The New Code will deal with the problem of an employee raising a grievance during a disciplinary process. The New Code will give the option of either:

  • temporarily suspending the disciplinary process to deal with the grievance; or
  • if the matters are interrelated, dealing with the grievance and disciplinary concurrently.

KEY EXCEPTIONS

Although no reasons are given, the New Code will NOT apply to dismissals on the grounds of redundancy or to the non-renewal of fixed-term contracts on their expiry:

  • a specific ACAS code on dealing with redundancies is due but it is not expected that there will be any significant changes to selection for redundancy, consultation, etc.
  • non-renewal of a fixed-term contract will still be deemed to be a dismissal so care must be taken to ensure that the employer has good basis for the dismissal and acts reasonably.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.