The Code is aimed at helping employees, employers and representatives handle disciplinary and grievance situations in the workplace. An unreasonable failure to comply with the Code could lead to an Employment Tribunal reducing a Claimant’s compensation by up to 25% or an increase in compensation for a Claimant by up to 25% if the failure is the employer’s.

Principles

It does not apply to any redundancy dismissals or the non-renewal of fixed term contracts upon expiry (even though this is a dismissal in law).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. Employers should inform the employee of the case against them and give them an opportunity to put their case in response before any decision is made. Employers should allow an employee to be accompanied at a disciplinary or grievance meeting. Employers should give the employee the opportunity to appeal.

The Code is split into two parts, disciplinary and grievances:

Disciplinary and dismissal

1. Establish the facts of each case

The employer should carry out necessary investigations without unreasonable delay (in other words, promptly).In misconduct cases, where possible, different persons should carry out the investigation and the disciplinary process. Suspension with pay should be as brief as possible and kept under review.

2. Inform the employee of the problem

If it is decided there is a disciplinary case to answer, the employee should be informed in writing, with written evidence attached, of the time and venue of the disciplinary meeting and of the right to be accompanied.

3. Hold a meeting with the employee to discuss the problem

A meeting should be held without unreasonable delay but should allow the employee sufficient time to prepare their case. Every effort should be made, by all, to attend the meeting. If the employee is persistently unwilling or unable to attend a meeting, without good cause, the employer should make a decision on the evidence available. At the meeting the employer should explain the complaint and go through the evidence. The employee should be allowed to set out their case and answer any allegations made, be allowed to ask questions, present evidence, call relevant witnesses and raise points about information provided by witnesses. Either party should give prior notice if they intend to call witnesses.

4. Allow employee to be accompanied

The right is to be accompanied by a Trade Union representative or a colleague. The companion should be allowed to address the meeting to put the worker’s case, sum up the case, respond on behalf of the worker to any views expressed and confer with the worker. They do not have the right to answer questions on behalf of the worker. This now appears to be wider in scope than previously.

5. Decide on appropriate action

The action should be confirmed in writing. Misconduct/unsatisfactory performance should normally result in a written warning followed by a final written warning if there is a further act of misconduct or a failure to improve performance within a set timescale. If the action is sufficiently serious it may be appropriate to move immediately to a final written warning. ACAS suggests seriousness is measured by whether the behaviour has or would have a serious or harmful impact on the organisation.

6. Warnings must

Set out the nature of misconduct/poor performance. Confirm a change in behaviour or an improvement is required. Confirm how long the warning will remain current. Set out the consequences of further misconduct/failure to improve.

7. Dismissal

A decision to dismiss should only be made by a manager who has authority to do so.

The employee should be informed as soon as possible of the reasons for dismissal, the date of dismissal, the appropriate notice period and the right to appeal.

8. Gross misconduct

A fair disciplinary process should always be followed, even in cases of gross misconduct.

9. Opportunity to appeal

An appeal should be heard without unreasonable delay and the employee should let the employer know the grounds of appeal in writing. The appeal should be dealt with impartially and, if possible, by a different manager. There is the statutory right to be accompanied and the employee should be informed of the result in writing.

10. Special cases

Trade Union Representatives – the normal procedure should be followed but ACAS advise that the matter be discussed, with the employee’s consent, with their TU official. Criminal Offence – will not normally in itself lead to disciplinary action. The employer should consider the effect that a charge or conviction will have on the employee’s suitability to do their job and the relationship with the employer, colleagues and customers. Only if such adverse impact is identified is disciplinary action justified.

Grievances

1. Let the employer know the nature of the grievance

If it is not possible to resolve informally, the employee should raise the matter formally and without unreasonable delay with a manager who is not the subject of the grievance. It must be in writing and set out the ‘nature of the grievance’.

2. Hold a meeting

Without unreasonable delay. All parties should make every effort to attend the meeting. Allow the employee to explain the grievance and how they think it should be resolved. Consider an adjournment if an investigation is required.

3. Decide on the appropriate action

Communicate the decision in writing to the employee without unreasonable delay. Where appropriate set out the action the employer will take. Confirm the right of appeal. If the employee remains dissatisfied they should appeal in writing without unreasonable delay.

4. Appeal

The appeal should be heard without unreasonable delay and dealt with impartially. Wherever possible, it should be heard by a manager who has not previously been involved in the case. The outcome should be communicated without unreasonable delay. There is a statutory right to be accompanied to meetings.

Overlapping grievance and disciplinary cases

If an employee raises a grievance during the disciplinary process, that process may be temporarily suspended whilst the grievance is dealt with. If both are related it may be more appropriate to deal with them concurrently (for example at one meeting).

Note

The Code of Practice does not apply to grievances raised on behalf of 2 or more employees by the representative of a recognised trade union or other appropriate workplace representatives – ACAS instead states that such grievances should be dealt with in accordance with the organisation’s collective grievance process.

For more information on the ACAS Code of Practice and other Employment Rights, please call our Employment Rights team on 033 3344 9603 or email David Sorensen.

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This Fact Sheet is for information only and is not intended to be a substitute for legal advice.