The Acas Code of Practice on Disciplinary and Grievance Procedures has now been in force for just over six months. It was an eagerly awaited document replacing (in a sense) the widely disliked statutory dispute resolution procedures. But the reaction of many reading the code for the first time was: ‘Is that it?’
Forty-five paragraphs long, the code does little more than set out the very basic principles of fairness that experienced HR professionals are already familiar with when dealing with disciplinary issues. Importantly, the code only applies to disciplinary action based on conduct or performance. It does not extend to redundancy dismissals or, it appears, to dismissals based on ill health.
Many HR professionals have assumed that their procedures are already in compliance with the code, and decided that it is something that they need not be overly concerned with. However, we are about to enter a period in which the details of the code will be closely examined by the courts. We should now start to see tribunal claims where the claimant is arguing that not only was his or her dismissal unfair, but that the employer acted in breach of the code, and that compensation should be increased by up to 25% to reflect this.
It could be argued that almost any conduct or capability-based unfair dismissal involves a breach of the code, and the vast majority of such claimants in such cases are likely to seek an enhanced award as a result. Most unfair dismissals are unfair because of the procedure followed by the employer, and it is the code that sets out what the key requirements of a fair procedure are. For example, a dismissal might be unfair because the employer failed to carry out a proper investigation.
This is a well-established ground of unfairness based on the well-known case of BHS v Burchell. However, it is now also a breach of paragraph 5 of the code. Similarly, withholding important evidence from the employee can be a breach of paragraph 9, and refusing to let the employee ask appropriate questions in the disciplinary hearing is a breach of paragraph 12. Of course the uplift will apply only when the breach is an unreasonable one – but a breach needs to be unreasonable to make the dismissal unfair in the first place.
How willing the courts will be to order an uplift – and what the typical level of uplift turns out to be – is going to be one of the key employment law questions for 2010. What is certain is that employers will need to keep on top of the case law as it develops.
One aspect of the code that may be particularly useful to employers, however, is the section on grievances. This is much less prescriptive than the passages on discipline, and simply sketches out a very basic procedure under which an employee complains and the employer immediately holds a meeting to hear what he or she has to say, and then offers an appeal.
The code does suggest that the employer may adjourn the meeting to carry out ‘any investigation that may be necessary’, but there is no requirement for an employer to carry out a full investigation before the meeting. Many employers currently invest a disproportionate amount of time investigating grievances with relatively little substance.
The more straightforward approach advocated by Acas is something that could benefit them considerably.
The Acas Code of Practice on Disciplinary and Grievance Procedures covers dismissals based on conduct and poor performance.
The coming year will see a flurry of cases where claimants seek to take advantage of the potential 25% uplift in compensation when a party unreasonably breaches its provisions.
Most unfair dismissals are unfair because of the procedure followed by the employer, and it is the code that sets out what the key requirements of a fair procedure are.
by Darren Newman, employment law trainer