As of today, the Statutory Dispute Resolution Procedures (“SDRPs”) covering dismissal, disciplinary and grievance procedures have been repealed.
In their place ACAS has issued its Code of Practice on disciplinary and grievance procedures, together with a guidance booklet.
The ACAS Code
The Code is not legally binding but is intended to help employers, employees and their representatives deal with disciplinary and grievance situations in the workplace. It does not apply to redundancies and claims associated with the expiry of fixed term contracts.
Key points of the Code to note are as follows:
- Failure by employers to comply with the Code will not render a dismissal automatically unfair.
- Non-compliance by an employee with the grievance provisions will not be a bar to bringing an Employment Tribunal claim.
- Filing a written grievance or having an appeal outstanding at the deadline for filing an ET1 will not trigger an extension to the original time limit for bringing a claim.
- Unreasonable failure to follow the provisions of the Code may lead to the Tribunal increasing or reducing compensation by up to 25%. It is not mandatory for a Tribunal to adjust compensation levels in the event of non-compliance.
Key points on handling disciplinary issues under the Code
- Employers should carry out necessary investigations of potential disciplinary matters without unreasonable delay to establish the facts of a case.
- Employers must notify the employee in writing of the alleged misconduct or poor performance and possible consequences, including the possibility of dismissal.
- Employees should be notified of the time and location of the disciplinary meeting and advised of their right to be accompanied.
- Employees should make every effort to attend a disciplinary meeting. If an employee is persistently absent without good cause, an employer may make a decision on the basis of the available evidence. During the meeting, the employee may present evidence and call relevant witnesses (where they have given advance notice to the employer that they intend to do this).
- Employers should communicate their decision in writing. Where misconduct or poor performance is established, a written warning and a final written warning should usually precede dismissal.
- Employees have the right to appeal against disciplinary action and should specify in writing the basis on which they wish to appeal.
Key points on handling grievances under the Code
- Employees remain under an obligation to raise a grievance in writing which should be submitted without unreasonable delay to their line manager or to another manager if the grievance concerns the employee’s line manager.
- Failure to submit a written grievance will not prevent a claim proceeding to the Employment Tribunal, but it may result in a reduction in the amount of compensation awarded.
- Employers should meet with the employee to give them an opportunity to explain their grievance and how they believe it could be resolved. Where an issue needs further investigation, the meeting should be adjourned.
- The outcome of the meeting should be communicated in writing to the employee without unreasonable delay.
- Employees may appeal in writing. Failure to appeal could result in a reduction in any compensation awarded.
When an employer is contemplating dismissal or taking "relevant disciplinary action" against an employee, the SDRPs will continue to apply in the following disciplinary and dismissal situations:
- The employer has sent a step 1 letter under the standard or modified procedure before 6 April 2009.
- The employer has held a step 2 meeting under the standard procedure before 6 April 2009.
- The employer has taken “relevant disciplinary action” (i.e. any action short of dismissal that the employer asserts is based on the conduct or capability of the employee, but does not include written or oral warnings or suspension on full pay) before 6 April 2009.
- The employer has dismissed the employee before 6 April 2009.
Where the employer holds off doing all of the above until after 6 April 2009, the SDRPs will not apply.
The SDRPs will not apply to employee grievances, provided the action or omission about which the employee complains occurred wholly on or after 6 April 2009.
Where the action or omission occurred wholly before 6 April 2009, the SDRPs will continue to apply to any grievance raised in respect of the action or ommision.
The situation, however, will be different for acts which began before 6 April 2009 but continue after that date. In such cases for almost all types of claim (with the exception of equal pay, redundancy payments and various industrial action claims), the old statutory grievance procedure applies if the employee sends a step 1 grievance letter, or submits a claim form to the Tribunal, before 5 July 2009. If that date passes without a step 1 letter or an ET1 being submitted, then the new regime applies and the statutory grievance procedure will not apply.
For equal pay, redundancy payments and some industrial action claims, the same applies except the relevant date is 5 October 2009 rather than 5 July 2009.
What does this all mean for employers?
The changes should result in employers having more flexibility, but proper procedure must be followed.
Employers need to fully familiarise themselves with the Code and the guidance.
Employers must ensure that they follow the Code’s good practice suggestions.
Employers must be sure to understand the complicated transitional provisions.
We will need to wait and see whether the industrial landscape has changed to such a degree that the dismissal, disciplinary and grievance procedures are unable to be “delegalised” and whether a return to practical workplace based solutions is in fact possible.