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In the Employment Bill a new process was promised that would be simple to follow, based on a revised ACAS code. That draft code has now been published and businesses have until 25 July to comment on its contents.
The code will be supported by a free-standing guidance note which will have, unlike the code, no legal standing. The new code attempts to allay the fears of smaller employers by remarking that it may not be possible for all employers to follow the code exactly, but all employers will be expected to follow good practice. The emphasis of the code is upon trying to settle disputes within the workplace, wherever possible. There is a renewed emphasis on fairness within the context of the workplace.
Employers should perhaps take note of some guiding principles to be followed:
Promptness
All meetings should be arranged as soon as possible. Clearly, employers will be expected to deal with issues as they arise and not store them up or refer to previous issues that have not been dealt with.
Consistency
This is absolutely crucial for employers to be consistent in their dealings with their employees. One rule for one and one for another will not be tolerated. For employers who have not dealt with a previous situation, they may be expected to ‘put a line in the sand' so that the principle is established for the future.
Investigate
Do not just assume, make sure that there is a thorough and fair investigation into the position. The size and resources of employers will no doubt be taken into account with regards to the ability to undertake investigations.
Independence
The code gives a clear indication that it expects the investigation and disciplinary action to be dealt with by independent people, therefore separating the two functions. This is contrary to at least two Court of Appeal decisions and would have a major impact if forced on smaller companies. This clearly needs more work if it is to be part of the final code. Many companies are just too small to follow this principle and that needs to be made much clearer in the final code.
Inform
It is only right and proper that an employee should be informed of the issues.
Response
Again, the code follows natural justice: once a person has been notified of the issues then they should be allowed to respond to those claims.
Accompany
The code confirms the statutory right to be accompanied but, interestingly, it places the onus on the employee to make that request. Good practice would always recommend that a disciplinary meeting should be confirmed in writing and the employee reminded that they can exercise the right to be accompanied if they wish. This is now confirmed in the code.
Appropriate sanction
Here the code expects the position to be carefully assessed, but it provides for the employer to move straight to a final written warning if the conduct or performance issue is so serious. Good practice would, again, make it sensible for the employer to clearly explain why the decision to go straight to final written warning had been decided to be appropriate. This would give the employee the opportunity to challenge the appropriateness of the decision on appeal.
Appeal
The code sets out the need to allow an appeal against the decision. This should be dealt with by a more senior person. The code, in referring to possible gross misconduct dismissals, sets out that employers should give examples of possible gross misconduct offences in their disciplinary rules. So employers should ensure that they do have a set of disciplinary rules, as this will help provide them with a defence that they have followed the ACAS code.
The code makes reference to the special case of criminal offences. There is a tendency for employers to dislike employees who are charged or convicted of criminal actions; the code clearly expects employers to consider whether the matter affects the employee's ability to perform their duties. Does this affect an employer who wishes to dismiss because the action may have brought the good name and reputation of the company into disrepute?
The code is short and to the point, but will it resolve the horrors that employers have faced in the last few years?
One clear impression from employers is that they want a quick and simple method of dismissal where staff cannot bring unfair dismissal claims. It needs to be enshrined in any new legislation that employers are under no obligation to follow any process if they want to be rid of employees with less than a year's service. This enables an employer to assess and judge an employee and then terminate.
In recent years, employers have found that the need to go through hoops has made it easier for employees and harder for employers in dealing with disciplinary issues. This is especially so with the need to give written notification of a meeting, which means that the employee has an opportunity to go off sick, making the process difficult and problematic for small employers. Now is the opportunity to redress this situation.
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