I have just realised that the new ACAS Code on disciplinary and grievance procedures came into force earlier this month. I have been so busy dealing with credit crunch issues that I have not had chance to work out what I need to do now that the statutory regime no longer applies. What should I do in respect of ongoing disciplinary/grievance procedures and what happens when new issues arise? Do I need to update my handbook straight away? Please help me crack the Code!
Dear Mr Brown,
You are correct that, after 4½ years of the statutory dispute resolution procedures, the ACAS Code of Practice came into force on 6 April 2009. The change has been welcomed by employers because the new procedures are less rigid and the punishment for breaching the Acas Code is much less severe than it was under the statutory regime (failure to follow the procedures no longer results in a finding of automatic unfair dismissal, while the uplift in compensation has been reduced from 50% to 25%). However, the actual disciplinary/ dismissal and grievance procedures have hardly changed.
Updating your handbook
The Code is well-written and easy to read. When updating your handbook, read the Code first and then think about the following issues:-
- Are changes necessary? – Because the procedures under the Acas Code are similar to the old statutory procedures, it may be that you do not need to rush into updating your staff handbook. If your policy is fairly rigid and closely mirrors the statutory regime, then some amendment is likely to be required in order to fit with the principle based approach of the ACAS Code. However, many staff handbooks include disciplinary/grievance procedures which are drafted in a flexible manner so as to give the parties the opportunity to adjust the process depending on the particular circumstances. Such grievance/disciplinary procedures are unlikely to require significant, if any, amendment.
- Involve staff in changes – If you do update your handbook, make sure that you involve employees and any elected representatives in the process. What “involving” employees and representatives means will depend on the size and resources of your organisation, but is likely to include advising them of the changes rather than consulting with them. In any event, employees and management should be told in writing where the written disciplinary and grievance procedures can be found, what they say and how they will be used in practice. Larger organisations are likely to have to train management on the procedures. Failure to do this may result in an uplift of up to 25% in the amount of compensation awarded by a tribunal.
- Consider what requirements to place on employees – It is recommended that your updated grievance procedures require employees to seek to resolve grievances informally and only once informal resolution has failed to raise the grievance formally. You should consider whether to require employees to raise any grievances in writing (whether formal or informal). By having the grievance in writing, HR are more likely to be aware of potential disputes at an early stage. The downside is that written grievances can cause entrenchment and make disputes more difficult to resolve.
- Principle based approach – The Acas Code is aspirational in the way it is drafted and makes clear that the basic principles of fairness may need to be adapted in certain, but limited, circumstances. For this reason, it is sensible to draft disciplinary/grievance policies in a similar manner. For issues where there is a greater degree of risk for employers, such as whistle blowing or equal opportunities, consider having separate notification procedures to give you a better chance of dealing with issues before they become litigious.
- Avoid time limits – Even though the statutory regime required that disciplinary/grievance matters were handled “without unreasonable delay” many employers chose to impose time limits on themselves for dealing with issues. In practice, employers struggled to meet these self-imposed deadlines and left themselves open to criticism by the employee and the tribunal. As with the statutory regime, there are no set time limits in the Acas Code but it is a requirement that matters are dealt with “promptly” or “without unreasonable delay”. However, you may wish to set time limits in which employees take certain steps, for example, that appeals are submitted within 14 days of receiving the written decision.
- Give examples – Non-exhaustive lists are a good way of helping employees to identify issues which constitute a grievance, or similarly to demonstrate conduct which could lead to disciplinary action. Clarify that the processes do not apply to redundancies or the non-renewal or expiry of fixed-term contracts.
- Identify roles early on – Consider naming those job titles that will deal with processes, but allow room to manoeuvre. This ought to assist you in flushing out whether there are any issues as to conflict/appropriateness at an early stage.
- Transitional arrangements – Although there is no obligation to do so, you may decide to refer to the existence of transitional arrangements (see below) so that, if applicable, the employer can justify why it has not followed the process set out in the handbook. Setting out the transitional provisions in detail in the handbook is unnecessary.
After 6 April, not all disciplinary/dismissal and grievance issues will be dealt with under the procedures of the new Acas Code. The transitional provisions, which are fairly complicated, are summarised below.
- Written grievances submitted prior to 6 April 2009 should continue to be addressed using the statutory grievance procedures.
- Complaints about matters which occurred entirely before 6 April 2009 fall under the statutory grievance procedures, even if the written grievance is submitted through 6 April.
- Where the matter complained about is an on-going act and the grievance or the ET1 is lodged before 5 July 2009 (or by 5 October in respect of claims for equal pay or redundancy payments), the statutory grievance procedures apply.
- If grievances are submitted after 6 April which complain about issues occurring entirely after 6 April, the ACAS Code applies.
- Disciplinary/dismissal procedures
- The ACAS Code applies to disciplinary/dismissal procedures only where the employer has started disciplinary/dismissal proceedings (e.g. sent an invitation to a meeting or convened a meeting without written invitation) after 6 April. If the employee has been invited to a disciplinary/dismissal hearing or attended such a hearing before 6 April then the statutory disciplinary/dismissal procedures will continue to apply.
Aron Pope is an employment and HR lawyer at Fox Williams LLP. Aron can be contacted on 020 7614 2640 or firstname.lastname@example.org.