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Disciplinary procedures: Out with the old and in with the new

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Policies and proceduresThe current statutory dismissal and grievance procedures are to be scrapped in April, in favour of a more simple process. John Ruddell discusses the impact this will have on organisations.


A new ACAS Code, which will be a key feature of the government’s Employment Act, will come into force on 6 April 2009. The Act and the new Code will replace the current compulsory statutory dismissal and grievance procedure (SDGP) which the government is scrapping following a consultation process, the outcome of which was that a strengthened ACAS Code would provide a better solution to solving workplace disputes.

When the SDGP was introduced in 2004 it became compulsory for employers and employees to follow a three-step procedure when dealing with workplace disciplinary matters and grievances. In respect of dismissals, if the employer failed to follow the statutory procedure the dismissal would be automatically unfair. The aim behind the procedures was to attempt to resolve disputes without the need for employees to resort to the Employment Tribunal thereby reducing the burden on the service.

“A strengthened ACAS Code would provide a better solution to solving workplace disputes.”

Following a review of these procedures the conclusion was that “the intentions of the 2004 Regulations were sound and that there had been a genuine attempt to keep them simple, and yet there is the same near unanimity that as formal legislation they have failed to produce the desired policy outcome”.

Indeed the number of applications rose because employers became even more cautious than before, ensuring that procedures were followed rather than trying to resolve the actual problem that had arisen. The regulations also provided a great deal of scope for legal argument over whether the procedures actually applied in the particular circumstances and indeed whether they had been followed correctly.

The new Code

The inflexible and overly prescriptive procedures are to be replaced by the ACAS Code, which is designed to provide some guidelines for employers dealing with discipline and grievance issues. The overall aim of the Code is similar to the procedures in that all parties must do all they can to resolve disciplinary and grievance issues in the workplace, and where this is not possible employers and employees should consider using a third party to help resolve the problem.

The Code sets out the key stages for handling disciplinary and grievance issues:

Disciplinary issues

  • Establish the facts of the 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

Grievances

  • 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 makes it clear that a grievance should be raised in writing. It also states that it is for the employee to raise an appeal if he is not content with any decision made.

Key changes

  • The new Code applies to all formal disciplinary proceedings, including those where a written or final written warning is given. This contrasts with the current situation which only applies to a disciplinary meeting which results in an employee’s dismissal.

  • Employers are only required to issue a first and then final written warning prior to dismissal and therefore the concept of the verbal warning has been abolished which should in theory make dismissing an employee easier.

  • The Code will not apply to redundancies or the termination of fixed-term contracts.

  • Employers and employees may be penalised by an adjustment of up to 25% on any award of compensation for an unreasonable failure to comply with a provision of the code.

  • A disciplinary process may be temporarily suspended to allow a grievance to be heard or, if the grievance and discipline are related, the issues may be dealt with concurrently. This should hopefully improve what has been a notoriously difficult issue to deal with under the SDGP.

  • The Code also states that: “Where an employee is persistently unable or unwilling to attend a disciplinary meeting without good cause, the employer should make a decision on the evidence available.” This does beg the question of what would amount to ‘persistently’ and is no doubt an area for argument.

What does it all mean?

The general approach for employers will remain the same although it is hoped that the less prescriptive nature of the Code will create an environment in which the resolution of workplace disputes is made easier for all concerned. It is at this stage unclear how tribunals will interpret the Code and how they will exercise their discretion in the adjustment of awards. There is however no doubt that employers will be glad to see the removal of mandatory uplifts in compensation and the automatic unfair dismissal sanction, and not too many tears will be shed with the passing of SDGPs.


John Ruddell is an employment law solicitor at Barlow Robbins LLP in Woking and Guildford. Email him at [email protected]

2 Responses

  1. New Dicsipline Code
    Interesting stuff this, viewed from the other side of the world.

    I am fascinated to see that refusal to attend a discipline meeting is dealt with other than failure to abide by a lawful instruction. Maybe it is a result of persistence on the part of the legal fraternity, certainly here in New Zealand, to ‘invite’ people to attend. My recommendation always is to ‘instruct’ them to attend. After all, they are employees and these meetings are part of their employment.

    Best of luck in the endeavours of the other contributor in getting any government to design and legislate a system that provides at least a level playing field for those who produce the wealth that allows nations to exist. Notwithstanding the failure of many in these times to satisfactorily produce that wealth, the fact is they are paying the price. Remember, those of you who may be rising up in dismay on behalf of workers at this comment, that I am talking here of the shareholders, NOT senior management. Please do not give up!!

  2. Moving deckchairs…
    Changes to the Statutory Procedures are welcome but there is a more fundamental issue to be addressed viz a viz the fairness of employment law.

    Working as a Human Resources consultant, too often the rights of the individual supersede the rights of the organisation because the law is not fair – it is based on commercial expediancy.

    The injustice is a legal system that allows spurious claims to receive credence whilst simultaneously tying the hands of the employer. Law Society members are free to market services such as ‘No Win – No Fee’ products, meaning any individual can submit a claim at nil cost to them and without consequence. ‘No win – No fee’ solicitors often offer ‘skewed’ legal opinion because they know many employers will ‘settle’ rather than waste valuable management resource or risk defeat at an Employment Tribunal.

    Secondly, litigious employees, more aware than ever of their individual rights, see a potentially huge windfall and it costs them nothing to play the game. The maximum compensation award for unfair dismissal has risen by 473% in the past decade to a Lottery-sized £63,000. And it is free to apply!

    With awards for ‘unfair dismissal’ shooting up by almost 500 per cent in the last decade, there can be no question the Employment Tribunals system is in need of a radical rethink.

    Why can’t tribunals thoroughly evaluate an applicant’s case much earlier in the process? We’d be horrified if the police arrested someone without taking a witness statement or securing some sort of corroboration, yet at present tribunals act in very much the same arbitrary fashion. I witness matters where applicants fail to tell the facts and though facts fail to match hard evidence, tribunals will give credibility to the most mendacious of claims and issue an ET3.

    As to Employment Law itself – it works against employers by favouring employees in a number of fundamental ways.

    Firstly, employees can discharge their legal obligation if they adopt the current Modified Grievance Procedure after leaving their employer. This mitigates their failure to complain formally while in employment, thereby denying employers the opportunity to address any matters at the time.

    Even if a claim is unsuccessful the employer loses out as in most cases each side will pay their own costs meaning ‘000s lost. Tribunals can rule a case to be so weak that it should not have been brought – which begs the question as to why such claims manage to reach a tribunal hearing and further underlines the need for rigorous examination earlier in the process.

    The system needs a rethink – these legal changes are deckchair moving in their impact whilst the ship is leaking below the waterline.

    Stuart Thomas – http://www.themybigtoecompany.com

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