Jenkins guides you through the new extended ACAS Code of Practice on
Disciplinary and Grievance Procedures
deeply rooted is it in the minds of those who strive for best practice that the
dominance of the existing Acas Code on Disciplinary Practices and Procedures
and its fundamental significance for anybody involved in industrial relations
can too easily be underestimated – worse still, forgotten.
arrival of an updated and extended version of the code – this time relating
both to disciplinary and grievance procedures – should serve as a useful
reminder of its important role and also prompt a thorough review of current
policies and procedures. The purpose of
this exercise should be twofold; first, to ensure that procedures do comply
with the key principles which are enshrined in the code (often, close scrutiny
reveals inherently unfair procedures); and second to extend existing procedures
so that they incorporate the new parts of the code. The new code, which is
three times the length of the existing version, covers some familiar ground in
that it offers guidance on the formulation and operation of disciplinary rules
also contains several completely new sections dealing with the right to
accompaniment, grievances and the management of absences and poor performance.
In particular, the third section of the code deals with the new statutory right
to be accompanied at disciplinary and grievance hearings. As with the code
itself, that new right comes into force this month.
the £50,000 compensation now available for unfair dismissal claims, it is
essential that procedures are carefully drafted to implement the new code and
the statutory provisions from which it flows. But equally important is the
provision of adequate training to the managers who will be putting the
procedures into practice.
new section suggests employers consult with their employees before introducing
or revising grievance procedures and that procedures should be "simple,
set down in writing and rapid in operation". It also suggests that a
procedure should provide a mechanism for raising grievances which could be
covered by the Public Interest Disclosure Act and sensitive grievances, such as
discrimination, bullying and harassment.
section goes on to give an example of a typical three-stage grievance
procedure. Also worthy of note is the
suggestion that, if an employee raises a grievance about a manager’s behaviour
during the course of a disciplinary process, it may be appropriate in some
circumstances to suspend the disciplinary procedure for a short time to allow
the grievance to be considered.
sections on absence and performance management should provide welcome guidance
to employers in areas of frequent difficulty. In performance and absence cases
employers often use procedures akin to their disciplinary code without making
adjustments appropriate to the circumstances and have often paid a penalty
later in tribunal proceedings.
relation to absences in particular the draft code makes the following
All unexpected absences should be investigated promptly.
Employees should be told if improvement in attendance is expected and what the
consequences will be if none takes place.
is a need to distinguish between absence on grounds of illness and absence
which calls for disciplinary action.
Factors to be taken into account when deciding how to tackle sickness absence
include length of service, likelihood of improvement, availability of
alternative work, the effect on the business and the handling of other similar
A hearing dealing with illness will attract the statutory right of
accompaniment if it could result in a warning or some other action being
Investigations should be carried out, before disciplinary action is taken, to
ascertain the cause of the sub-standard work.
If the cause is lack of skills, assistance through training should be given.
Sub-standard performance due to negligence will normally warrant disciplinary
action through either the normal disciplinary procedure or a separate
The disciplinary/capability procedure should explain the circumstances in which
a single error could lead to dismissal.
again, the statutory right to be accompanied will be triggered by any hearing
which could result in a warning or some other action being taken.
draft code also makes a new recommendation. Records should be kept of the
reasons for any disciplinary action taken and the outcome of any appeal. Record
keeping must also comply with the new provisions of the Data Protection Act
1998 (which now covers manual filing systems in addition to computerised
records). In particular, the Data Protection laws allow individuals to gain
access to certain information about them held on their personal files.
to be accompanied
first two sections of the code, in reality, do little more than codify the well
established principles of good practice which are reinforced daily by tribunal
decisions. Entirely new ground is not
reached until the third and final section which gives guidance on the right of
"workers" (wider than the term employees) to be accompanied at
disciplinary and grievance hearings subject to a reasonable request made orally
or in writing.
code summarises the various elements of the right and then seeks to amplify the
statutory position by giving practical guidance. The following are some
features that are likely to be of particular significance.
is a reasonable request?
a request for accompaniment is "reasonable" is a question of fact and
will depend upon the circumstances of each case, taking into account matters
such as the nature of the offence or grievance, the nature of the hearing, the
stage of the procedure and the circumstances of the worker.
of a duty
right applies only to grievance hearings which concern the performance of a
"duty by an employer in relation to a worker". The code attempts to
perform the unenviable task of deciphering this statutory language by
suggesting that grievances stemming from day to day friction between fellow
workers may not always involve a legal duty, issues concerning pay will depend
on the circumstances of each case, as will a grievance about a pay increase,
given that that would depend upon the right being contractual. Clearly though
grievance hearings about bullying or harassment would attract the right as they
flow from an employer’s duty of care.
accompanying person can be either a fellow worker, a full-time trade union
officer or a lay trade union officer or workplace representative so long as
they have been certified by their union as having suitable experience. The code
says that certification can take the form of a card or letter stating that the
individual has been certified by the union as being capable of fulfilling the
role of the worker’s companion.
a trade union is recognised in a workplace the code says that it would be
"good practice" for an official from that union to accompany the
worker to at a hearing. A worker has to be allowed a reasonable amount of paid
time off to fulfil his responsibility as a companion. The code makes it clear
that the time off should cover not only the hearing, but also a reasonable
amount of time for the companion to confer with the worker before and after the
the case of a lay trade union official the right to paid time off to accompany
a worker applies so long as the worker is employed by the same employer.
of the companion
The companion should be allowed to participate as fully as possible in the
hearing, though he has no legal right to answer questions on the worker’s
The companion has a legal right to address the hearing, should be allowed to
ask questions and be permitted time to confer privately with the worker, either
in the hearing room or outside.
a chosen companion is not available the worker can suggest an alternative date
and time so long as it is reasonable and is within five working days of the
initial date proposed by the employer. The code states that the worker should
have regard to the availability of the relevant manager when proposing an alternative
date. It would not be appropriate, for example, to re-schedule the hearing on a
date when the manager was going to be absent from work.
to observe the right to accompaniment entitles the worker to claim compensation
of up to two weeks pay. More significant, though, is the risk of the failure
contributing to a finding of unfair dismissal. While a failure by an employer
to observe any part of the Code of Practice does not automatically guarantee
the success of an unfair dismissal claim, a deviation from the code without
good cause will inevitably be viewed dimly by tribunals.
Jenkins is head of employment law for Beachcroft Wansbroughs in Manchester and
an experienced employment tribunal advocate