Discipline and grievance: the new Acas Code of Practice explained

14 July 2009

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Two of the employment issues our members ask us about most frequently are those related to discipline and grievance. In particular, what constitutes a grievance, when to take disciplinary action and how both should be dealt with legally. To make matters more complicated, the law regarding these issues changed on 6 April 2009.

The new legislation should enable disputes to be resolved in the workplace before they escalate to employment tribunals. In theory, this should save you time, money and stress.

Sections 1 to 7 of the Employment Act 2008 makes the following changes:

Existing statutory procedures for dealing with discipline, dismissal and grievance issues will be repealed.
A revised Acas Code of Practice will be introduced.
Tribunals will have discretionary powers to adjust awards by up to 25% if employers or employees fail unreasonably to comply with the Acas Code.
Acas to provide a free early conciliation service.
Tribunals will be allowed to award compensation for financial loss in certain types of claims.

Code of Practice

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Advice from the TUC on discipline, grievances and tribunals

The Code sets out the basic requirements of fairness and transparency that will be applied to cases. These can be demonstrated by developing rules and procedures for handling discipline and grievance.

Employees should be involved in the development of procedures and these should be set down clearly in writing. It is important that employees understand them, and know where they can be found and how they are to be used.

To ensure fairness, Acas sets out a number of principles to follow:

Raise and deal with issues promptly. Do not unreasonably delay meetings, decisions or confirmation of those decisions.
Always act consistently.
Establish the facts of the case by carrying out necessary investigations.
Inform employees of the problem and give them an opportunity to put forward their case before any decisions are made.
Allow employees to be accompanied to formal disciplinary/grievance meetings.
Allow employees to appeal against any formal decision made.

In the case of grievances only:

The employee should let you know the nature of their grievance.
Arrange a formal meeting to discuss the grievance. Both you and the employee should make every effort to attend this.
Decide on appropriate action and communicate this to the employee in writing.
Allow the employee to take grievance further if not resolved.

If an employee raises a grievance during a disciplinary process, the disciplinary may be suspended temporarily in order to deal with the grievance. If the two are related, it may be appropriate to deal with both at once.

Unlike the old Code, the revised Code does not make steps in the process mandatory. Therefore, failure to follow the Code does not necessarily make a person or business liable. However, employment tribunals will take the Code into account when considering relevant cases.

What is a grievance?

The Code defines grievances as 'concerns, problems or complaints that employees raise with their employers'. The word 'grievance' does not need to be used in the complaint.

Generally, if the complaint is in writing, it is likely to qualify as a grievance so you should treat it as such. Acknowledge receipt and invite the employee to a formal meeting.

In practice, this means that you could find yourself overwhelmed by grievances. However, by following the Code and guidance from Acas or a legal adviser, you should be able to deal with issues before they escalate into a situation where a tribunal is the only choice.

Disciplinaries

Acas defines disciplinary situations as those that include 'misconduct and/or poor performance' on the part of the employee.

If you have a separate capability procedure, you can address performance issues under this. However, if you do, you should ensure that the principles of 'fairness' set out in the Code are followed.

Ideally, matters should be addressed before they get to the stage of becoming disciplinary or grievance issues.

Which legislation applies?

If the 'trigger event' occurs on or after 6 April 2009, you should follow the new procedures.

This is the date you start the disciplinary or dismissal action - usually the date you send a letter to or call a meeting with the employee informing them that you are contemplating disciplinary or dismissal, or the date of the action itself, when no such step has been taken.

In grievance procedures, this is the date when the employee makes a complaint.

If the 'trigger' occurred before or on 5 April 2009, the old statutory procedures will apply. In these circumstances, you cannot agree with an employee not to follow them.

Preparing for the new legislation

If your procedures for dealing with grievance, dismissal and disciplinary issues comply with current legislation (pre-6 April 2009), you may not have to change them to comply with the new Code.

However, it does present the opportunity to review your procedures to make them easier to understand and apply. For example, you could:

Devise a more relaxed and informal approach to dealing with problems at work.
Train managers in conflict resolution so disputes can be resolved easily internally.
Consider including a mediation stage in your internal processes.

Acas have produced a comprehensive non-statutory guide to handling discipline and grievance in the workplace. You can download this and the full Code of Practice here.

Note: The Code does not apply to either collective grievances raised by a workplace representative such as a trade union, or dismissals due to redundancy or the non-renewal of fixed-term contracts.

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