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Dismissal and Grievance Procedures- The New Law

 

 

 

Dismissal and grievance procedures - the new law

 

�� New Acas code of practice

�� Disciplinary procedures

�� Grievance procedures

�� What happens if we do not comply?

�� Transitional arrangements

 

 

Main points

 

The new Acas code will not be legally binding but its provisions will be taken into account by employment tribunals where appropriate. A failure to comply with the code will not automatically make a dismissal unfair (although it is likely to do so).

 

In addition, where there has been an unreasonable failure to comply with the code, a tribunal will have power to adjust compensation by up to 25% - either upwards or downwards, depending on which party is at fault.

 

Under the new regime, employees will no longer need to lodge a written grievance with their employer before they can bring a tribunal claim. However, their failure to do so may mean that any compensation they are awarded is reduced.

 

The code itself is very short, but Acas has published much more detailed, supplementary guidance on best practice in dealing with discipline and grievances at work (also available at http://www.acas.org.uk/).

 

Unlike the current statutory dismissal procedure, the code will not apply to redundancy dismissals and non-renewal of fixed-term contracts.

 

General requirements

 

The new code sets out a framework for conducting grievance and disciplinary

proceedings fairly and resolving workplace disputes. The main general points are:

Employers and employees should raise and deal with issues promptly,

without unreasonable delay.

 

Employers should carry out all necessary investigations to establish the facts.

 

Employers and employees should act consistently.

 

Employers should inform employees of the basis of any problem and allow them an

opportunity to put their case before any decision is made.

 

Employees should be allowed to be accompanied to any formal disciplinary or grievance meeting

 

Employees should be allowed to appeal against any formal decision.

 

Disciplinary procedures

 

The new code is intended to help employers and employees deal effectively with issues of alleged misconduct and poor performance in the workplace. When deciding whether an employee has been unfairly dismissed, an employment tribunal will take into account relevant provisions of the code in considering whether the employer followed a fair procedure. If the claim is upheld, failure to follow the code by either the

employer or employee may affect the compensation awarded.

 

Key elements of the code with regard to disciplinary processes include:

 

• Different people should carry out

the investigation and the

disciplinary hearing.

 

• An investigatory meeting should not

by itself result in disciplinary action

without a disciplinary hearing.

 

• Suspensions with pay should be as

brief as possible and kept under

review. It should be made clear

that the suspension is not a

disciplinary action.

 

• The employee should be notified of

disciplinary proceedings in writing.

Sufficient information about the

alleged misconduct or poor

performance and their possible

consequences should be given, so

the employee can prepare to

answer the case.

 

• Copies of written evidence should

normally be provided with the

notification, including any witness

statements.

 

• The notification should give details

of the time and venue for the

disciplinary meeting and advise of

the right to be accompanied.

 

• The meeting should be held without

unreasonable delay, whilst allowing

the employee to prepare their case.

Employers and employees (and

their companions) should make

every effort to attend.

 

Introduction

 

New rules on handling grievances and disciplinary issues are coming into force this month ie in April 2009. The legislation on dismissal and grievance procedures introduced in 2004 - widely regarded as overly complex and legalistic - is being swept away and replaced with a simpler system. The centrepiece is a revised

Acas code of practice (available at www.acas.org.uk) setting out clear, straightforward guidelines on handling disciplinaries and grievances.

 

At the hearing, the employer should explain the complaint and go through the evidence gathered.

 

The employee should be:

 

allowed to set out their case and  answer allegations;

 

given a reasonable opportunity to ask questions, present evidence and call relevant

witnesses; and

 

given an opportunity to raise points about any information provided by witnesses.

 

Employees and employers should give advance notice of an intention to call

relevant witnesses.

 

Right to be accompanied

 

The employee has a legal right to be accompanied by a fellow worker or trade union representative where a disciplinary meeting could result in:

 

a formal warning being issued;

 

the taking of some other disciplinary

action; or

 

confirmation of a warning or other

disciplinary action (i.e. at an appeal

hearing).

 

 

Here's something important: for the first time, it is necessary for employers to inform employees of their right to be accompanied - and if the employer fails to do so, it's a breach of the Acas code and so a potential uplift in compensation

 

Decision and right of appeal

 

Following the hearing, the employer should send its decision to the employee in writing. If misconduct or poor performance is established, dismissal should normally follow only where first and final written warnings have previously been issued. In cases of gross misconduct dismissal for a first offence might be an appropriate

response, but a fair disciplinary process should still be followed.

 

Written warnings should set out the nature of the misconduct or poor performance, the change required and the timescale. The employee should also be informed how long the warning will remain current and the consequences of further misconduct,

or failure to improve, within a set period.

 

Where employees consider that disciplinary action is wrong or unjust, they should appeal in writing, specifying the grounds. The appeal should be heard without unreasonable delay and dealt with impartially by a manager who, if possible, has not

previously dealt with the matter. The employee has the right to be accompanied at the appeal hearing.

 

Grievance procedures

 

The Acas code is intended to help employers and employees resolve grievances effectively in the workplace, thereby averting tribunal claims. The key points are:

 

• If an employee's grievance cannot be resolved informally, it should be raised in writing and without unreasonable delay with a manager.

 

• If the grievance concerns the employee's line manager, they should raise it with another manager.

 

• Failure to raise the grievance in writing does not prevent the employee from bringing a tribunal claim about the matter. But the employee might be awarded reduced compensation if they have not done so.

 

• The employer should arrange a formal meeting to allow the employee to explain the grievance and how they consider it should be resolved. Employers and employees (and their companions) should make every effort to attend.

 

• Consideration should be given to adjourning the meeting for any investigation that may be necessary.

 

• Where an employee raises a grievance during the disciplinary proceedings, the disciplinary process may be suspended temporarily. However, where the

grievance and disciplinary issues are related, it may be appropriate to deal with both concurrently.

 

 

• The code does not apply to collective grievances-i.e. a grievance raised

on behalf of two or more employees by a union or other workplace representative.

 

 

Right to be accompanied

 

 

The employee has a statutory right to be accompanied by a fellow worker or

union representative at a grievance meeting which deals with a complaint

about a duty owed by the employer to the worker.

 

Decision and right of appeal

 

After the meeting, the employer should decide what, if any, action to take to resolve the grievance. This should be communicated to the employee, who should also be

informed of their right to appeal.

 

If the employee is not satisfied with the outcome, they should appeal in writing, specifying the grounds of their appeal. The appeal should be dealt with impartially at a hearing, conducted if possible by a manager who has not previously been involved.

 

The employee should be informed in advance of the time and place of the appeal hearing and may bring a companion. The employer should communicate the final decision in writing without unreasonable delay.

 

What happens if we do not comply?

 

Non-compliance with the current statutory procedures can have draconian consequences for employers and employees. In contrast, the new regime is not legally binding and failure to follow its provisions will not automatically result

in a penalty.

 

However, a failure to comply with the provisions of the Acas code where it is

applicable will be taken into account by tribunals when deciding cases. The

provisions of the code will be of mostsignificance in deciding whether employers are liable for unfair dismissal.

 

In addition, where the tribunal finds that an employer has unreasonably

failed to follow the guidance in the Code, the compensation awarded to

the employee may be increased by up to 25%. Alternatively, compensation

can be reduced by up to 25% in respect of an employee's breach of the code.

These compensation adjustments can apply in various types of tribunal

claims, including unfair dismissal, discrimination (on grounds of sex,

race, disability, age etc), unlawful deduction from wages and breach of

contract.

 

Implications for employers

 

Employers should check their disciplinary and grievance procedures to ensure they comply with the Acas code. The basic requirements of the current statutory procedures are in fact quite similar to those set out in the code, so employers who already comply with the former may conclude that no major changes are needed.

Employers who do not currently have their own rules and procedure in place

should consider producing a set which complies with the code. There is no

formal obligation to do so but it is implicit in the code's recommendation

that rules and procedures be "set down in writing, be specific and clear".

 

The Code also says that employees and, where appropriate, their representatives should be involved in the development of rules and procedures.

 

Training

 

It is also advisable that managers and employees receive training so that they

understand what the rules and procedures are, where they can be found and how they are to be used. In addition, managers should be encouraged to resolve issues

proactively and informally before a formal grievance is raised.

 

Non-employees and ex-employees

Although the Code only applies to ‘employees', it is not always clear what a person's employment status is. Where an employer is unsure about a worker's status, it is probably advisable to comply with the provisions of the code so as to avoid any possible uplift in compensation. One exception to this is the right to be accompanied

to disciplinary or grievance hearings, which is a statutory entitlement for all workers, not just employees.

 

Similarly, although it might appear that the code is not intended to apply to former employees, tribunals may well decide differently. Cautious employers should still observe the code when dealing with grievances by ex-employees. This will avoid the risk of a 25% uplift and may even have the effect of preventing a tribunal claim

altogether.

 

Transitional arrangements

 

The current statutory procedures, where applicable, will continue to apply after 6 April 2009 in certain circumstances.

 

Discipline and dismissal cases

 

The statutory disciplinary and dismissal procedures will apply if, on or before 5 April 2009, the employer has either:

 

> dismissed the employee;

> taken relevant disciplinary action

against the employee; or

> complied with step 1 or 2 of the

standard procedure, or step 1 of the

modified procedure.

 

This means that where the employer holds off doing anything until after 6 April, the statutory dismissal procedure rules will not apply. The new regime and the Acas code will apply instead (so unreasonable delay should be avoided).

 

Grievance cases

 

As for the statutory grievance procedures, these will continue to apply where the action about which the employee complains occurred wholly before 6 April 2009.

 

Where the action forming the basis of the grievance begins on or before 5 April 2009 and continues beyond that date, the statutory procedure will only apply if the employee either sends a grievance letter or presents a complaint to a tribunal based on the grievance on or before 4 July 2009 (for most types of claim). For cases of

equal pay or statutory redundancy payment claims and certain industrial action dismissal claims, the cut-off date is 4 October 2009.