Disciplinary and Grievance Procedures – The New Rules

With effect from 6 April 2009, the statutory dispute resolution procedures were repealed and replaced by the Acas Code of Practice (‘the Code’) (www.acas.org.uk). The Code is not legally binding and a failure to follow its provisions will not automatically result in a penalty of any kind as was the case when the statutory resolution procedures were in force. Nevertheless, Tribunals may increase any award of compensation by up to 25% if they believe that an employer unreasonably failed to follow the guidance set out in the Code or decrease it by 25% if they feel that the employee unreasonably failed to follow the provisions of the Code.

The key provisions of the Code in relation to disciplinary and grievance procedures are as follows:

1. Disciplinary procedures

Investigations

  • Employers should carry out necessary investigations without unreasonable delay.
  • Different people should carry out the investigation and the disciplinary meeting(s).
  • Suspensions with pay should be as brief as possible.

Before disciplinary meeting

  • The employee should be notified of the alleged misconduct or poor performance in writing and of its possible consequences. It would be appropriate to provide the employee with copies of any written evidence such as witness statements.
  • A meeting should be held as soon as possible to discuss the problem. Employers and employees should make every effort to attend the meeting.

At the meeting

  • The employer should explain the complaint against the employee and go through the evidence that has been gathered. The employee should be allowed to set out his/her case and answer any allegations.
  • The Employee has a legal right to be accompanied by a TU representative or a colleague where the disciplinary meeting could result in a formal warning being issued or the taking of some other disciplinary action or the confirmation of a warning or some other disciplinary action.

Decisions

  • The employer should send its decision to the employee in writing.
  • Where misconduct is confirmed or performance is unsatisfactory, the employee should be given a warning which will be recorded in writing. Depending on the seriousness of the misconduct/poor performance, this may be a warning or a final written warning. Dismissal should only follow when a written warning and a final warning have been issued.
  • In cases of gross misconduct, a dismissal without notice may be appropriate but a fair disciplinary process should always be followed.
  • Written warnings should set out the nature of the misconduct or poor performance, the improvement required, and the timescale for improvement. They should also specify how long they will remain current, and the consequences of further misconduct (or failure to improve) within that period.

Appeal

  • Employees should be given the opportunity to appeal where they feel that the disciplinary action taken against them is wrong or unjust.
  • The Appeal should be dealt with impartially and, if possible, by a manager who has not previously been involved with the case.
  • Employees have a right to be accompanied at appeal hearings.
2. Grievance Procedures

Informal grievance

  • If it is not possible to resolve a grievance informally, employees should raise the matter formally in writing and without unreasonable delay with a manager who is not the subject of the grievance.

Meeting

  • Employers should arrange for a formal meeting to be held without unreasonable delay and Employees should explain their grievance and how they think it should be resolved.
  • Employers and employee should make every effort to attend the meeting.
  • Employees have a right to be accompanied at a grievance meeting by a TU representative or a colleague.

After the meeting

The employer’s decision should be communicated to the employee in writing and the employee should be informed that he/she has the right to appeal the employer’s decision.

Appeals

  • Appeals should be heard without unreasonable delay and should be dealt with impartially.
  • Employees have a right to be accompanied at an appeal meeting by a TU representative or a colleague.

NB: Where an employee raises a grievance during the disciplinary process, the latter should be suspended in order to deal with the grievance and thereafter resumed if appropriate.

3. What do Employers need to do?

Employers will note that the requirements of the Code are similar to the old statutory disciplinary and grievance procedures pre 6 April 2009. Employers, who already have a disciplinary and grievance policy document, should not need to make substantial changes to it but they would need to remove references to steps 1 and 2 of the statutory procedures. Employers should always notify employees of any changes to their disciplinary and grievance policies and appropriate training should be made available.

4. Transitional arrangements

The 2004 statutory dismissal and disciplinary procedures will continue to apply from 6 April 2009 if, on or before 5 April, the employer had 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.

The 2004 statutory grievance procedures will also continue to apply where the action that forms the basis of the employee’s complaint occurred wholly before 6 April 2009. If the complaint begins on or before 5 April 2009 and continues thereafter, the grievance procedures will also continue to apply as long as the employee has presented a complaint to a tribunal based on that grievance on or before 4 July 2009, or 4 October 2009 in cases of equal pay, redundancies or certain industrial action dismissal claims.

The material contained in this guide is provided for general purposes only and does not constitute legal or other professional advice. Appropriate legal advice should be sought for specific circumstances.

© July 2009

For further information on the ACAS Code of Practice or on implementing disciplinary or grievance rules and procedures in the workplace, please contact:

Please contact:

Emmanuelle Ries - Partner

DD +44 (0)20 7553 9938

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