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Employment Q&As: the Acas Code of Practice in action

It is now more than two months since the Acas Code of Practice on disciplinary and grievance procedures came into effect. Here, we look at some of the common questions being asked about implementing the Code and the tricky issues that are emerging in practice.

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It is now more than two months since the Acas Code of Practice on disciplinary and grievance procedures came into effect. Here, we look at some of the common questions being asked about implementing the Code and the tricky issues that are emerging in practice. Are we required to give an employee the right of appeal when dismissed for redundancy? The Code does not apply to redundancy dismissals, but such dismissals are still covered by statutory unfair dismissal rights. This means that employers must satisfy the reasonableness test if they are to show that such a dismissal is fair. The leading case states that procedural fairness is an integral part of this test in redundancy dismissals. Does procedural fairness include giving the employee the right to appeal their redundancy? There is no case law which states that it does, but it could be argued that a fair procedure should include the employee's right to challenge the employer's decision. This view is strengthened by the Acas advisory booklet 'Redundancy Handling', which advises employers to establish a redundancy appeals procedure, involving a senior member of management, to deal with complaints from employees who feel they have been unfairly selected. There is no indication as to when any appeals procedure would apply (before the decision to dismiss or following it?) but the advice is that you should provide the employee with a right of appeal at some point in the redundancy process. This is often done once the decision to dismiss has been taken and the opportunity to appeal is confirmed in the letter of dismissal. If you have your own redundancy procedure and this contains the right of appeal then this should continue to apply. Employers often use the appeal as a guard against poorly thought out redundancy decisions and it does give you the opportunity to remedy defects, should these exist before the employee reaches for the Employment Tribunal claim form. Are we required to hold a meeting to consider the grievance of an employee who has now left? The Code states that an employee should set out their grievance in writing, following which their employer should hold a meeting at which the employee should be allowed to explain their grievance. The Code refers to an "employee" raising a grievance with the "employer" but says nothing about what should happen in respect of post-employment grievances. It could be argued that if the Code was meant to apply to post-employment grievances then it would specifically say so. An alternative view is that it goes against the spirit of the Code if it were not meant to apply. Both may be valid. We will have to await a decision in an appealed case to know the answer. Until we have such case law, you should take a cautious approach and endeavour to follow the grievance process as outlined in the Code if there is any risk that the ex-employee may bring a claim. If the Code does apply to post-employment grievances and you have not complied with it then you do leave yourselves exposed to the uplift (up to 25%) which Employment Tribunals are able to apply to awards for successful claims for unfair (constructive) dismissal, discrimination, equal pay and breach of contract. The Code contains no modified grievance process as was the case under the statutory grievance procedure and this may cause some practical difficulties for employers, particularly when you consider that the Code allows for the right of appeal. However, many employers do find benefits to holding a grievance hearing for an ex-employee. It gives you an opportunity to address any issues and assess the strength of a claim. Even if a claim results, the Employment Tribunal is likely to look on your attempts to resolve the dispute favourably and can provide a strong senior witness who heard the appeal and will often provide good evidence to the Tribunal. Are we required to apply the Code when dealing with sickness absence? The Code must be applied in disciplinary situations which are described as "misconduct and/or poor performance." Therefore whether the Code applies will depend upon the precise nature of the sickness absence issue. If the issue is being treated as one of misconduct, then your usual disciplinary procedure should be used and the provisions in the Code must be complied with. An example would be where you genuinely believe that the employee is not ill. More commonly, sickness absence dismissals will be because the employee is no longer capable of doing their job. This would apply where the employee has a long term illness with no prospect of a return to work in the near future, or the employee has persistent short-term absences which, when taken together, create an unacceptable attendance record. In these cases, employers often have sickness management procedures which involve a succession of meetings with the employee to put them on notice that their attendance record is falling below the sandard required and if the absence persists then dismissal may be considered. In these scenarios the Code does not strictly apply. However, where dismissal occurs these are still covered by the statutory unfair dismissal rights and employers must satisfy the reasonableness test if they are to show that such a dismissal is fair. This will require you to show, amongst other things, that you have met with the employee to discuss the matter before arriving at a decision and have provided the employee with the opportunity to appeal any decision to dismiss. About the author This article was put together by the FPB's legal advisers, Mace & Jones Solicitors. For more information see www.maceandjones.co.uk.

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