There have been recent changes in the law relating to employment procedure following lobbying by employment solicitors, tribunal judges, ACAS and trade union and employer organisations.
If an employee raises an issue or complaint in writing, then it should be treated as a grievance, even if the employee states that is it an informal request. An employer should simply start the grievance procedure, acknowledge receipt of the grievance and invite the employee to a grievance hearing. At that point the employee may wish to withdraw the complaint, but at least the employer has met its obligations.
From 6 April 2009 the ACAS Code of Practice provides the procedure, replacing the old statutory procedures. The new ACAS Code of practice places less emphasis on the mechanics of procedure and more on flexibility and being principle based. Failure to adhere to the Code does not automatically result in unfair dismissal and the uplift for breaches has been reduced from 50% to 25%. An Employment Tribunal will take the Code into account when considering claims and can adjust the award to the benefit of the employee or employer. The size and resources of the employer can be taken into account by the Employment Tribunal when assessing compliance to the new Code. The new Code does not apply to redundancy dismissals or the expiry of fixed term contracts.
The ACAS Code of Practice retains some of the key features of the statutory procedures, for instance - requirement to inform in writing the nature of the grievance/disciplinary procedure; hold a meeting; and the right of the employee to appeal the decision. However, in a more general sense there is no longer a requirement to follow a mandatory procedure.
The key results:
- A dismissal will not be automatically unfair where it has failed to follow the defined procedure;
- There is no longer the requirement to submit a grievance before a tribunal claim;
- In most cases there is a return to the simple three month time limit for starting a claim.
The new ACAS code illustrates how to make grievance and disciplinary procedures fair and these include:-
- Issues should be dealt with promptly and without unreasonable delay;
- Both parties should act consistently;
- Employers will be able to hold disciplinary hearings in the employees absence where an employee has been unable or unwilling to attend without good cause;
- Employers should make proper investigations before taking action;
- Employers should inform the employee of any allegations in writing and give them the opportunity to put their case;
- Employees should be given a reasonable opportunity to call witnesses;
- Employees should be invited to a meeting to discuss the issues;
- Employees are allowed to be accompanied to meetings;
- Misconduct and poor performance can be dealt with by a number of warnings unless it is sufficiently serious to move to a final warning or summary dismissal;
- Employers should deal with issues promptly;
- Employees have the right of appeal and set out the grounds of the appeal in writing;
- Employers may no longer be obliged to hear grievances from ex-employees.
The new ACAS Code is aspirational in outlook and the principle of fairness underpins the way it has been drafted.
Employers should consider reviewing their current procedure to comply with the new Code. The Code encourages mediation and for employers to develop their procedures in consultation with their employees. Employers should consider the option of mediation in their procedures and identify situations where an informal approach would circumvent problems escalating.