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ACAS Code of Practice - Summary of Differences

Summary of the main differences between the existing and the new Code

Disciplinary

• The Code says that it is “important” for employees and managers to understand how the procedures are used – this is likely to mean that there will be a greater emphasis on the induction process and training those who manage.
• There is emphasis on using a manager to hear the disciplinary/grievance that was not involved in the matter giving rise to the dispute (unless the matter is a performance related one when he/she would be involved).
• It is only “good practice” to keep written records except in relation to the outcome of a disciplinary/grievance process when records “should” be kept. The obligation is currently greater under the existing code (“it is important to keep records”).
• There is no provision for what should happen if an employee does not attend a meeting, nor about what should happen if a grievance is raised during a disciplinary process.
• A pure investigation meeting does not mean an individual has a right to be accompanied, although it is considered good practice to allow this. There is also a new requirement to make it clear to employees that the investigation may lead to disciplinary charges.
• Employees should be notified in writing if there is a case to answer. Notification should contain sufficient information to let the employee know what the alleged problem is and its possible consequences (the possible consequences is a new provision, and gone is the requirement to set out why the conduct is unacceptable).
• There is then a seemingly separate requirement to notify the employee the nature of the problem and the basis of the allegation against them before the meeting. There is no mention that this needs to be done in writing. The word “basis” smacks of the existing statutory provisions. There is currently no guidance other than a body of case law that has emerged over the last year or so in relation to the meaning of “basis” within the context of the modified disciplinary and grievance procedures.
• It sets out the circumstances in which the statutory right to be accompanied arises and identifies these as being where the disciplinary meeting could result in a formal warning, the taking of some other disciplinary action or confirmation of a warning or some other disciplinary action (appeal hearings). There is no active requirement to inform employees of the right to be accompanied.
• There is no obligation to try and agree the time and place of a meeting in relation to disciplinary meetings but there is for grievances.
• Where a sanction is imposed, the emphasis is to tell the employee a specified period after which the warning is disregarded, but, unlike the existing Code, there are no suggested lengths for warnings (possibly as a result of the recent Court of Appeal decision in Airbus v Webb in which the Court endorsed the possibility of disregarding the time limits set out in the current ACAS Code if the circumstances justified it).
• The decision should be given in writing, both from the original hearing (it states “written warning” and appeal (which specifically mentions in writing). The existing Code says that the results must be confirmed in writing, allowing for an oral decision followed by confirmation in writing. There is no mention of “confirmation” in the new Code.
• Gone is the suggestion that employees have 5 days in which to appeal. There are no time limit suggestions, although appeals should be heard “promptly”.
• The new Code provides that disciplinary rules should include examples of acts of gross misconduct.
• The option for utilising the equivalent of the modified procedure seems to have gone. When gross misconduct occurs the new Code says that a fair disciplinary process including an appeal should always be followed, before deciding whether gross misconduct has occurred.
• The results of the appeal hearing must be given “as soon as possible” in writing.

Grievances

• There is no specific emphasis on trying to resolve matters informally (although in the introduction to the Code (which also has statutory effect) it does state that many grievance issues can be resolved informally).
• The Code only refers to the fact that it is “best” that a grievance is raised in writing. There is no obligation to do this.
• Responding to the grievance within the suggested five working days has gone. Decisions are to be “communicated without undue delay”.
• The requirement to respond in writing has also gone. The decision should be “communicated” and “should set out what action the employer intends to take to resolve the grievance”. This means there are different provisions for how an employer has to deliver the outcome of a disciplinary (in writing) and a grievance (“communicated”).
• There is no reference to a need to let an employee know of the right of appeal from a grievance. It simply states that an employee should be allowed to take the matter further on appeal if their grievance has not been satisfactorily resolved.