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ACAS Code of Practice - Draft Consultation

Introduction

We have been asked by ACAS to comment, as part of its consultation exercise, on a revised Code of Practice on discipline and grievance (“the Code”).

The Code is intended to act as guidance for employers and employees in handling workplace disputes in anticipation of the repeal of the statutory dismissal and discipline procedures.

In contrast to those procedures, which were incorporated into the existing ACAS Code of Practice, the revised draft Code is refreshingly concise and principles-based. ACAS has proposed that the new Code replaces the existing Code of Practice and is introduced at the same time as the statutory procedures are repealed (currently anticipated as being in April 2009).

A significant difference between the existing and proposed new Code is that it is couched more in terms of “should” rather than absolutes. In the main, there appears to be far less scope for employers and employees to trip up on legal technicalities – the most major criticism of the statutory procedures.

As you will know, a failure by an employer to follow the statutory procedures to the letter results in a finding of automatic unfair dismissal, even if the error is minor. Whilst neither the existing nor the draft Code render a business liable in the event it fails to follow it, an unreasonable failure to comply with any provision of the new Code entitles Tribunals to adjust any award made by up to 25%. This adjustment will replace the current requirement on a Tribunal to make a finding of automatic unfair dismissal and also replaces the current adjustment to award level of between 10 and 50%.

ACAS has confirmed that it will also be publishing a separate and more comprehensive non statutory guidance which is intended to provide supporting information on handling work place disciplinary and grievance issues.

Consultation Process

We have summarised the Code below although the full Code can be accessed by clicking on this link Draft Code of Practice on discipline and grievance.  It totals 14 pages but the substantive part totals 6 pages.

In another separate document, for those that are interested, we have identified what we perceive to be the main differences between the existing and the draft Code.

At the end of this section is a link to an on-line questionnaire to complete. This contains an additional space for comments.

We have been asked to provide our and our clients’ comments by 25 July 2008. If you wish to participate in the consultation exercise, please could you complete the on-line questionnaire by 18 July 2008.

ACAS is likely to make responses public. When responding, please indicate if you wish your response (or part of it) or your identity to be kept confidential.

When ACAS publishes the comments and any amendments we will shall ensure that these are sent to you. Once the final Code has been approved, we shall be offering those that participated in the consultation process a chance to meet with us to discuss the implications for your business in more detail.

Thank you for taking the time to review and respond to this consultation process.

ACAS Code of Practice - online QUESTIONNAIRE

Summary of the revised Code

Guidelines for employers taking formal action:

• Issues should be dealt with promptly.
• Employers should act consistently.
• Appropriate investigations should be made.
• Grievance or disciplinary hearings should be carried out by managers not involved in the matter giving rise to the dispute.
• Performance issues should involve immediate managers.
• Employees should be informed and be able to put forward their case before any decisions are made.
• Employees have the right to be accompanied.
• Employees should be allowed to appeal.
• It is good practice for employers to keep written records. 

Discipline

This part of the Code sets out the keys to handling disciplinary problems in the workplace, which are to:

• Establish the facts of each case.
• Inform the employee of the problem.
• Hold a meeting with the employee to discuss the problem.
• Allow the employee to be accompanied at the meeting.
• Decide on appropriate action.
• Provide employees with an opportunity to appeal.

The Code also briefly refers to "special cases" involving trade union lay officials and employees who are charged with criminal offences.

Grievance

This part of the Code lists the keys to handling grievances in the workplace:

• Let the employer know the nature of the grievance.
• Hold a meeting with the employee to discuss the grievance.
• Allow the employee to be accompanied at the meeting.
• Decide on appropriate action.
• Allow the employee to take the grievance further if not resolved. 

The Code states that it is good practice to consider dealing separately with issues involving bullying, harassment or whistle blowing.