Legal Ease

The New ACAS Code of Practice for Disciplinary and Grievance Came Into Force On 6th April 2009 - So What Does That Mean To You?

On 6 April 2009 the Employment Bill 2008 repeals the Statutory Dispute Resolution Regulations 2004, abolishing the three step statutory grievance and discipline procedures.

The new Code is not legally binding but whilst a failure to follow its provisions will not automatically result in a penalty, the Tribunal will make reference to the Code in deciding whether an employer has acted fairly and reasonably. If an employer fails unreasonably to follow the guidance set out in the Code the Tribunal may in certain cases increase any compensation by up to 25% or, decrease it by up to 25% if an employee fails unreasonably to follow the Code.

The Code is not dissimilar to the previous disciplinary and dismissal procedures and it is likely that your current procedures will meet most the requirements of the new code. However, it is now a requirement to provide an employee with all the evidence against them and the employee can call witnesses and ask questions of anyone who has provided a witness statement. This could include witnesses on whom the employer is relying, thus potentially making the hearing more adversarial in format.

Failure to follow the statutory procedures will no longer result in automatic unfair dismissal.

An employee may lodge an ET1 without submitting a grievance to the employer first, but compensation may be affected if their case is successful at tribunal.

Mediation will be the key to resolving disputes early. Emphasis will need to be on resolving issues informally as much as possible.

Timescales will be less rigid and the statutory modified procedures are abolished. The new rules will not apply to redundancies or the ending of fixed term contracts.

The new Code simplifies the situation whereby a grievance is raised during a disciplinary process. The Code provides that in this situation, the disciplinary process may be temporarily suspended in order to deal with the grievance. If the grievance and disciplinary are related then it may be appropriate to deal with both issues concurrently.

If employers do receive grievances from employees in resignation letters or after they have left, it is recommended that an employer at least responds in writing (and in some situations tries to arrange a meeting) to minimise the risk of a 25% uplift if the former employee subsequently brings a successful claim.

Actions to Take
· Review your employment contracts and employee handbooks in line with the new ACAS Code of Practice
· Include an explanation of the mediation process in policies
· Provide clear guidance on submitting grievances
· Communicate policy changes to employees
· Provide training to your Managers in the new procedures
· Consider training internal mediators or identifying an external mediation company

Redundancy
As redundancy is very much apparent at the moment we thought it would be a good time to remind you that a women who is made redundant whilst on maternity leave is in a privileged position. If there are any suitable vacancies she has the tight to be offered them first, over and above other redundant employees!! She will have an automatic claim for unfair dismissal if you don’t do this.