The ACAS Code of Practice

The Employment Act 2008 introduced changes to the way in which disciplinaries and grievances are dealt with from 6 April 2009 in the form of the ACAS Code.

Before 6 April 2009, it was essential that the 3 step statutory process be followed in its entirety in order to avoid any dismissal being deemed automatically unfair.  Tribunals will now look at whether employers have followed a fair process when determining whether a dismissal is unfair or not. 

If an employer now wishes to initiate the disciplinary process, it must first consider the issue at hand.  The ACAS Code only applies to matters concerning capability and conduct and so if the potential dismissal is in relation to either or these reasons, the employer must investigate the matter first before considering inviting the employee to a disciplinary hearing.  If the employer believes that there is enough evidence to conduct a disciplinary hearing, it should write to the employee, inviting them to attend a hearing.  It is also important that the employee is given the opportunity to bring either a colleague or trade union representative with them to the disciplinary hearing.  Once the hearing has taken place, the employer must write to the employee informing them of its decision and provide the employee with the opportunity to appeal and once again, provide them with the opportunity to bring either an employee or trade union representative with them.

A further change which was introduced on 6 April 2009 is the uplift or reduction in compensation which may be awarded to the employee.  Prior to 6 April 2009, if an employer or employee failed to follow the correct statutory procedures, compensation could be increased or reduced by up to 50%; this has now been reduced to 25%.  Furthermore, there are no longer automatic extensions of time for submitting a claim to the Tribunal.

We recommend that employers and employees follow the practical steps outlined below to ensure as far as possible that a fair process is followed:

Employers

• Try to involve employees and if possible, their representatives, in developing new disciplinary procedures.
• Make procedures available to all employees
• Investigate all issues thoroughly.  You may need to conduct further investigations after the disciplinary meeting.
• Allow the employee to present their evidence, including witnesses, if appropriate.
• Keep written records of any meetings and investigations.
• Do not delay the process.

Employees

• Attend all meetings wherever possible.  If you fail to attend several meetings, the matter may be heard without you.  If you cannot make a hearing, inform your employer and ask for it to be rescheduled.
• Take a colleague or trade union representative to the meeting if possible.  You do not have to be a member of a trade union to request a representative attend the disciplinary meeting with you.
• Remember: you should appeal the disciplinary decision to avoid a percentage reduction to any potential compensation.
• Remember: you have 3 months less one day from the date you leave work (the date your notice expires or the date you are summarily dismissed) to make an unfair dismissal claim to the Tribunal.

For more information or advice on the ACAS Code of Practice, please contact Suki Harrar.