ACAS is an independent and impartial Government funded organisation. Before a claim can be brought in an Employment Tribunal, the claim must be referred by an employee for early conciliation to ACAS. ACAS also issues Codes and Guidance for dealing with certain issues in the workplace.
The ACAS statutory Code of Practice on Discipline and Grievance (the Code) was implemented in 2009 to provide basic guidance to employers, employees and their representatives for handling disciplinary and grievances. In order to defend claims for unfair dismissal, all employers should have a disciplinary and grievance procedure easily accessible to staff.
Tribunals will take the Code into account when determining if there is an unfair dismissal. Any unreasonable failure by an employer to follow the Code can also result in a financial award made against an employer being increased by as much as 25%.
The Code does not require an employee to bring a grievance before submitting a Tribunal claim for unfair dismissal but employees who unreasonably fail to do so may suffer a reduction in any financial award of up to 25%.
Some of the common breaches of the Code we have seen are:
1. Unreasonable delays
Investigations not being carried out without “unreasonable” delay.
2. Inappropriate and insufficient written notification
Employees not being given written notice of what issues are under consideration in the disciplinary process.
3. Poor procedure
Not allowing the employee every opportunity to provide an explanation for their conduct or performance as they may have special circumstances known as mitigating factors, such as illness or personal issues which need to be considered.
4. The same individual carrying out the whole disciplinary process
Different individuals should ideally be appointed to carry out each stage of the disciplinary process, such as the investigation, the hearing and the appeal stages.
5. Insufficient system of appropriate warnings
An employee can be dismissed for gross misconduct without a prior warning subject to following the disciplinary process. However in cases where the misconduct is less serious, a number of warnings should be given before a dismissal takes place.
6. No right to appeal
Employees should be given the right to appeal and reasonable time limits in which to do so.
7. Not allowing a companion
Employees have a statutory right to be accompanied by a companion, either a fellow worker or a trade union official at the disciplinary or grievance meeting.
8. Failure to warn the employee about the consequences of a disciplinary hearing
An employee should be told of the possible outcomes of any disciplinary action. A failure to warn of a dismissal would be a significant breach of the ACAS Code and can lead to increased compensation being awarded.
9. Failure to keep accurate records of the disciplinary procedure
An accurate record of the disciplinary procedure should be kept.
If you have a disciplinary issue or have to deal with a grievance given the potential for uplifts on awards you should always consider obtaining expert employment law advice to avoid falling foul.